Churches are thriving in America, unlike in most European countries that have long traditions of established churches.  When the state supports churches, resentment against government, which is inevitable, spills over to religion.  Consider Israel, whose citizens are far more secular on average than Americans.  Many Israeli Jews resent religion because the Rabbis have too much influence over marriage, divorce and other aspects of daily life.  This turns people against religion.  Israel does not have an established religion, despite its being a “Jewish state.”  Muslim and Christian Israelis, who comprise nearly a quarter of the population, have equal status and equal rights, or at least as a matter of law, but Conservative and Reform Jews do not.  Within the Jewish religion, Orthodoxy is the established branch.  This has caused enormous resentment—against both the state and the synagogue—by reform, conservative and secular Jews and have driven many of them away from religion.  In the U.S., on the other hand, resentment against the government (Congress’ approval rating is always quite low) does not translate into resentment against the churches.  To the contrary, cynicism about politics, may well drive some people toward greater commitment to their churches.  

I believe, therefore, that perhaps the single most important guarantee in our Constitution is one that is not explicitly enumerated:  the separation of church and state.  Although those words do not appear in either the body of the Constitution or in the First Amendment, there can be no doubt that the founding fathers constructed a system of checks and balances that required such separation.  Without it, the church (representing organized religion) could not serve as an effective check on the secular excesses of the state; nor could the state serve as an effective check on the excessive involvement of the church in the business of governance and on the rights of religious and non-religious dissenters.  The marvel of our unique system of checks and balances, is that is does not simply involve each branch of government—executive, legislative and judicial—checking on the others; it also encourages—through the freedoms guaranteed by the First Amendment—other institutions to serve as checks on the government.  In addition to the churches (broadly defined to include all religious institutions), these include the media, the academy, the business community, and especially the “people” who have the right to vote, to assemble and to petition for a redress of grievances.

Just before the 50th Anniversary of the Declaration of Independence—the day on which two of its primary authors, Jefferson and Adams, both died—Jefferson wrote the following about the purpose of Declaration:

     “May it [the Declaration of Independence] be to the world, what I believe it will be (to some parts sooner, to other later, but finally to all), the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessing and security of self-government.  That form which we have substituted, restores the free right to the unbound exercise of reason and freedom of opinion.  All eyes are opened, or opening, to the rights of man.  The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimacy, by the grace of God.  

Jefferson, who himself believed in the God of Deism—that is a non-Biblical, not Judeo Christian diety—saw the Declaration as freeing Americans (and hopefully the rest of the world) from the stifling influence of the church (“monkish ignorance and superstition”) and encouraging “the free right to the unbound exercise of reason and freedom of opinion.”

Even earlier, Jefferson, while President, had written to the Danbury Baptist Association, describing that the “act of the whole American people which declared their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof, [as] thus building a wall of separation between church and state.”

Even earlier, while Adams was president and Jefferson Secretary of State, they jointly signed a treaty, ratified by the Senate, with the Barbary regime in Tripoli, that stated unequivocally that “the government of the United States is not in any sense founded on the Christian religion.”  (emphasis added).

It is difficult, therefore, for any reasonable person, especially anyone who gives weight to the original understanding, to dispute Jefferson’s conclusion that the First Amendment built a wall of separation between church and state and that our state is not based on the Christian religion.    


Despite this wall of separation guaranteed by our Constitution and despite the unambiguous statement in the early American treaty, approved by two of our most influential founding fathers, there are those who continue to insist that the United States is a Christian nation, as a matter of law.  I became personally involved in this divisive controversy in 1988, when the Republican Party of Arizona proposed the enactment of a resolution declaring the United States to be “a Christian nation…based on the absolutes of the Bible.”

The leader of the group (characterized by the late Arizona Senator Barry Goldwater as a “bunch of kooks”) wrote to Justice Sandra Day O’Connor on the United States Supreme Court asking her to support their efforts.  

     “Republicans are making some interesting advances in this heavily controlled Democratic area.  Some of us are proposing a resolution which acknowledges that the Supreme Court ruled in 1892 that this is a Christian nation.  It would be beneficial and interesting to have a letter from you.”

Despite the crass partisan political objective of the undertaking and its utter incompatibility with the Constitution O’Connor had sworn to uphold, she agreed to help, writing the following letter for publication:  

     “You wrote me recently to inquire about any holdings of this Court to the effect that this is a Christian nation.  There are statements to such effect in the following opinions:  Church of the Holy Trinity vs. United States; Zorach vs. Clauson; McGowan vs. Maryland.”

Not only was O’Connor wrong to write any letter in support of this unconstitutional, partisan, kooky proposal, she was wrong on the law, wrong on the facts and wrong on her history.  First of all, if this were a “Christian” nation, its form of Christianity would be decidedly Protestant.  Catholics would be second class citizens.  Indeed our Constitution, and the earlier Declaration of Independence, were designed, at least in part, to protect Americans from the influence of the Catholic Church, which was reviled by many of our founding fathers, including Adams and Jefferson.  (“Monkish ignorance” was a clear reference to the Catholic Church.) 92   Second, there are no such “holdings.”  Third, the first case she cited (which had long ago been discarded, if not overruled) contained—in dictum—some of the most bigoted language in Supreme Court history by one of the most bigoted Justice in its history, David Brewer.  

Brewer’s dictum, in an obscure immigration case, declared “Mohomet” and “the Grand Lama” to be “imposters.”  In his other writings and speeches, he decried the evil of Mormonism and other non-Christian faiths.  He was an anti-Catholic bigot and an anti-Semite, as well as a racist and segregationist.  He believed that we were a white Protestant nation and he smuggled the concept of a “Christian nation” into dictum not even in a case that did not even raise the issue. 

When, in 1892, Brewer wrote the disgraceful and bigoted opinion cited by O’Connor, the U.S. was, demographically, a white Protestant Christian nation.  The nation’s demography changed dramatically in the nearly a century between that decision and O’Connor’s letter.  And the law reflected that change.  

Since 1892, the court has not referred to this nation as “Christian” or “Protestant.”  Indeed, the justices have gone out of their way to be inclusive.  For example, when Justice William O. Douglas sustained a New York program permitting public school students to be released for an hour each week for religious instruction, he specifically gave as an example of religious accommodations “a Jewish student [asking] his teacher for permission to be excused for Yom Kippur.”  Yet this was one of the decisions miscited by Justice O’Connor as containing statements to the effect that this is a Christian nation. 93 

When her letter was disclosed, Justice O’Connor issued a statement regretting that it has been “used in a political debate,” and the Supreme Court media office said that O’Connor “had no idea” that the letter would be used politically.  But that simply isn’t true, since the request to Justice O’Connor—stating that it would be “beneficial” to have a letter from her as part of a Republican proposal to enact a Christian Nation resolution—made it clear that she was being asked to write her letter specifically for use in a political campaign.

When I got wind of Justice O’Connor’s letter, I wrote a scathing op ed for the New York Times criticizing her judicial ethics as well as her miscitation of the law.  

     Justice Sandra Day O'Connor has again deplorably allowed her name and judicial office to be used for partisan political purposes.
     In 1987, she agreed to conduct a ''private briefing'' in the Supreme Court for Republicans who contributed at least $10,000 to a political-action group. She canceled it after leading ethics experts publicly criticized her actions as violating the Code of Judicial Conduct - but not until after her name had been used in the fund-raising solicitation.

     Justice O'Connor recently complied with a request from an arch-conservative Arizona Republican friend who had asked her to write a letter in support of a proposed party resolution declaring the United States to be ''a Christian Nation . . . based on the absolute law of the Bible.''

     …



I then described what she had done and the phony excuse she had offered in defense:  that she “had no idea” her letter would be used politically.  My op ed concluded:

     Not only was Justice O'Connor's letter used in that [political] campaign, its miscitation of cases was relied on in the resolution enacted by the Arizona Republican Party. That resolution begins, ''Whereas the Supreme Court of the United States has three holdings to the effect that this is a Christian nation . . . .'' It then cites the decisions provided by Justice O'Connor and declares that we are ''a Christian Nation,'' and that the Constitution created ''a republic based upon the absolute laws of the Bible, not a democracy.''
     Justice O'Connor has twice given aid and comfort to partisan Republican causes. Both times her regrets came too late and only after public criticism. She has twice allowed her name and judicial office to be used improperly. She has twice violated the Code of Judicial Conduct, which unambiguously directs sitting judges to refrain from political activity, including ''making speeches for a political organization'' and participating in political fund raising.

     A seat on the Supreme Court does not exempt a Justice from complying with the rules of the profession. Justice O'Connor must remember that her allegiances are no longer to a particular wing of the Arizona Republican Party but to all Americans, regardless of party affiliation, region or religion.



I was told by several law clerks that after my op ed appeared, she was deeply embarrassed by what she had done and has not repeated the errors of her way during her subsequent years of service on the Court.

Justice O’Connor was not, of course, the first (or the last) public office to use Christianity in the of partisan politics.  The issue got so bad during the 1984 presidential race that Walter Mondale found it necessary to remind Ronald Reagan that in the United States the president, unlike the queen of England, is “not the defender of the faith” but rather the “defender of the Constitution.”  

In 2012, A Republican candidate for President, Rick Santorum, said that the concept of an absolute separation of church and state, as articulated by John Kennedy when he was running for president, “makes me want to throw up.”  Other candidates, though expressly themselves less graphically, have also railed against the separation of church and state.  “Faith” has become synonymous with “values” in the minds of many although there is absolutely no correlation.  Indeed, the “values” espoused by people who would impose their faith on others are highly questionable.  They include denying gays the equal protection of the law, denying women (and young girls) the right to choose abortion, and sometimes contraception, even in compelling cases; and, often, other conservative political “values” that have nothing to do with religion, such as low taxes, the right to bear arms, the death penalty and widespread censorship.  The debates over these issues, especially gay rights and the right to choose abortion, have become wedge controversies that are unduly influenced by the churches in violation of the spirit, if not the letter, of our Constitution.  

The rights of gays to absolute equality

When I was growing up, it was impermissible to use any words that were demeaning to African Americans (who we called Negroes or colored), to other religions or ethnic minorities (except for the Germans and Japanese during World War II) or to women.  But insulting gay boys (we had no idea there even were lesbians) was perfectly acceptable.  Indeed, we commonly used “the F word” to insult non-athletic classmates or effeminate-looking boys.  We never actually met a real live homosexual (at least to our knowledge) but we knew there was “something wrong” with anybody who was sexually attracted to people of the same gender.  

Our bigotry was not religiously based, though we knew that the Bible prohibited sex between men (perhaps the Bible’s authors, like us, had no idea there were lesbians).  We just didn’t like “homos.”  It was as simple as that.  You really do have to be taught to hate (as said the words of a song from a show popular back in the day.)  And we were taught to treat all people, except gays, equally.  

It’s very different among today’s youth, at least in parts of the world that I frequent.  Most young people I encounter can’t even understand why anyone would discriminate against someone based on his or her sexual orientation or preference.

Today, the discrimination does seem religiously based, at least to a significant degree.  The Bible is frequently cited as the authoritative source for condemning homosexuality, and the sanctity (a religious term) of marriage between a man and a woman serves as the primary basis for opposition to gay marriage.

Since my youth, the movement toward full equality for gays has made great strides, despite continuing religious objection from some church groups and some Orthodox Jews.  The fact that many churches, as well as conservative and reform Judaism, support equality has muted the impact of the religious right somewhat on this issue.  Before long, I predict, it will not be an issue for most Americans.

In 2003, during the beginning of the presidential election season, the Supreme Judicial Court of Massachusetts rendered the first-in-the-nation decision declaring it unconstitutional to limit marriage to heterosexual couples.  This decision was truly a knife that cut both ways:  it was a Magna Carta for gay and lesbian couples, but it was also a boon to social conservative candidates who could use it as an important part of their appeal to the majority of Americans who then believed that marriage should be reserved for heterosexual couples.  

I decided to write an op ed that would seek to eliminate gay marriage as “a wedge issue” in the upcoming political campaign.  In it, I argued that if marriage is indeed sacreda divine, a blessed sacrament between man and woman as ordained in the Bible, it would follow that the entire concept of marriage has no place in our civil society, which recognizes the separation between the sacred and the secular, between church and state.  Just as the state has no role in baptisms, circumcisions or other religious rituals, it should play no role in sacred marriages.


The state is, of course, concerned with the secular rights and responsibilities that are currently associated with the sacrament of marriage (as it is with the safety of baptisms and circumcisions): the financial consequences of divorce, the custody of children, Social Security and hospital benefits, etc.
The solution I proposed is to unlink the religious institution of marriage -- as distinguished from the secular institution of civil union -- from the state. Under this proposal, any couple, regardless of gender, could register for civil union, recognized by the state, with all its rights and responsibilities.

Religious couples could then go to the church, synagogue, mosque or other sacred institution of their choice in order to be married. These religious institutions would have total decision-making authority over which marriages to recognize. Catholic churches would not have to perform or recognize gay marriages. Orthodox Jewish synagogues would not perform or recognize a marriage between a Jew and a non-Jew who did not wish to convert to Judaism. And those religious institutions that chose to perform or recognize gay marriages could do so. It would be entirely a religious decision beyond the scope of the state.

Under this new arrangement, marriage would remain a sacrament, as ordained by the Bible and as interpreted by each individual church. No secular consequences would flow from marriage, only from civil union.

In this way, gay couples would win exactly the same civil rights as heterosexual couples in relationship to the state. They would still have to persuade individual churches of their point of view, but that is not the concern of the secular state.

Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.  Roger Williams and Thomas Jefferson would surely have approved.

Although this proposal may sound radical, it does not differ fundamentally -- except for labels -- from the situation that exists in many states today. Throughout the United States, couples have the option of being married civilly by going to town halls or to a justice of the peace and simply signing a marriage certificate. They also have the option of going to a church, synagogue or mosque and being married in a religious ceremony. So most Americans already have the choice between a sacrament and a secular agreement ratified by the state.

All that would be different would be the name we give the secular agreement. The word "marriage" would be reserved for those who chose the religious sacrament.

Though some traditionalists would be certain to balk at an explicit division between marriage and civil union, a majority of Americans already agree that gay couples should be allowed to join in secular unions with the rights and responsibilities that generally accompany marriage.



I concluded my op ed as follows:
     So let each couple decide whether they want to receive the sacrament of marriage or the secular status of civil union. And let the state get out of the business of determining who should receive holy sacraments.



My column was widely circulated and generated an enormous debate.  I was invited to appear on television and radio shows, where extremists on both sides pilloried me:  gay activists for not going far enough; religious anti-gay activists for going too far.
Shortly after my column appeared, I received a phone call from the then Governor of Massachusetts, Mitt Romney, who told me that he found my idea interesting and asked me to draft legislation that he might consider proposing in order to break the deadlock.  I drafted the legislation, but never heard back from the governor, who by the time I submitted it, had announced his candidacy for President of the United States.  He was almost certainly fearful of the pushback he would get from the religious right—whose votes he needed to be nominated—if he were seen as favoring anything that even resembled gay marriage.  



Since that time, several states have adopted gay marriage or civil unions and the trend is clearly in the direction of full equality for gay men and women.  I predict, based on the reaction of my current students to this issue, that the next generation will not even understand why earlier generations took so long to recognize equality for gays.  


A woman’s right to choose abortion

As easy as the resolution of the gay marriage issue would be under our Constitution—full equality either in marriage or civil unions for all—that’s how difficult it is to resolve the abortion issue as a matter of Constitutional law.  Politically I have always supported a women’s right to choose abortion, since I do not regard an early term fetus as a human being for purposes of the abortion debate.  For me the decision to abort is very much a matter of degree and the women carrying the child should have primary responsibility to make that decision.  But as a matter of constitutional law, I find little basis in either the right of privacy or the right to equal protection that would grant a women the right to terminate her pregnancy, particularly as the fetus comes closer to viability.  The law must always make arbitrary judgments—an 18 year old may vote but a 17 year old may not, a 34 year old may not run for president, but a 35 year old can—and the judgment as to when a fetus becomes a human being in highly arbitrary.  Most legal systems establish exit from the birth canal as the moment of humanity but a 9 month old fetus in the womb is biologically indistinguishable from a fetus that has just exited the womb.  (Indeed when kangaroos exit from the womb, it is only a temporary condition and the joey returns periodically to the mother’s external womb for nourishment.)  The fetuses is as viable at 9 months as at 9 and a half, but distinctions must be made by the law.  

The question of when life begins is somewhat more arbitrary than the related question of when life ends.  But even the latter question is subject to disagreement as the cases involving “pulling the plug” demonstrate.  

The religious component in the abortion debate is quite pronounced.  For a believing Catholic, and for some Protestants, life begins at conception.  If I believed, as some do, that abortion is the killing of a human being with a soul, I would probably be marching in front of abortion clinics to stop the murder of innocent babies.  The fact that I don’t believe this is largely a matter of my upbringing, most particularly my religious training.  It is not a matter of absolute “truth.”  Some scholars, believe that they can demonstrate, as a matter of philosophical truth, that the Catholic position is wrong.  I think that is the height of arrogance.  Nor am I convinced by the faulty argument, offered by some, that if Catholics really believed that fetuses were human beings, they would punish abortion by the death penalty and the fact that they don’t proves, under this view, that they don’t really believe that fetuses are human beings.  This argument is preposterous on its face, for several reasons.  First, some religious extremists do believe that abortion should be punished by death.  Indeed, they have killed abortion doctors.  Second, some Catholics are opposed to the death penalty even for murder.  Indeed, that is the official position of the Vatican.  Third, one can believe that abortion is murder and yet understand that there may be mitigating factors.

Following the Supreme Court infamous decision in Bush v. Gore, essentially handing the 2000 Presidential election to George W. Bush, I wrote a book (Supreme Injustice) in which I argued that “the seeds” of Bush v. Gore “were planted by the campaign to constitutionalize a woman’s right to choose abortion.”  

I argued that the abortion issue is quintessentially political.  It involves a clash of ideologies, even world views.  Unlike the issue of equality for gays or state-enforced racial segregation, the controversy over abortion has no absolute right and wrong, either morally or constitutionally.  Virtually everyone today acknowledges that segregation was both immoral and unconstitutional.  All it took was a strong push by a unanimous Supreme Court to set in motion a process that was ongoing in most other democracies throughout the world, but that had gotten stuck in the United States because the channels of democracy had been blocked by malapportioned legislatures and other perversions of the democratic process.  Over a period of years, the Supreme Court placed its moral imprimatur on desegregation and eventually unblocked these channels of democracy.  It worked – not perfectly, but perfection is rarely possible in a heterogeneous and divided democracy.  A similar process is today underway with regard to equality for gays.

Abortion is different.  The Supreme Court’s decision, now more half a century old, changed few minds on this issue, because those who believe that abortion – or certain kinds of abortion – is tantamount to murder are not like those who believed that segregation was right.  The former believe that they occupy the moral high ground.  And they do, if their underlying premise – that a fetus is a human being – is correct.  No rational argument, whether made by philosophers or Supreme Court justices, will ever disprove the truth of that a priori premise.  Nor will experience alter it, unlike views concerning segregation or gay rights which have been markedly changed by experience.

Moreover, the nation was – and remains – closely divided about the morality of abortion, both in the abstract and under various circumstances.  Advocates of a woman’s right to choose abortion could have organized politically to win that right (at least for most women under most circumstances) in the elected branches of government.  According to the ACLU:

     Between 1967 and 1971, under mounting pressure from the women’s rights movement, 17 states decriminalized abortion.  Public opinion also shifted during this period.  In 1968, only 15 percent of Americans favored legal abortions; by 1972, 64 percent did.  When the Court announced its landmark 1973 ruling legalizing abortion in Roe v. Wade, it was marching in step with public opinion.

But it is not the proper role of the Supreme Court to march “in step” with public opinion.  That is the role of the elected branches of government.  Instead of devoting all their resources to continuing the legislative and public opinion battle, the pro-choice movement devoted much of its resources to the litigation option, whose goal it was to get the Supreme Court to constitutionalize a woman’s right to choose abortion.  It worked as planned, thus sparing the pro-choice movement the difficult political task of organizing and fundraising on a state-by-state basis.  The justices did the work for them, by simply striking down most abortion laws in one fell swoop.

The short-term consequences of constitutionalizing the abortion issue were powerful and positive for the choice movement.  The long-term consequences were disastrous.  Roe v. Wade provided the Religious Right and the conservative wing of the Republican Party one of the best organizing tools and rallying cries imaginable.  The right-to-life movement was energized by this decision and became one of the most potent political forces both nationally and in a large number of states.  At the same time, the pro-choice movement became lethargic, celebrating its great judicial victory and neglecting the hard work of organizing and fundraising – at least in the beginning.  As the ACLU has put it:

     … the backlash was swift and fierce.  Anti-choice forces quickly mobilized, dedicating themselves to reversing Roe.  In 1974, the ACLU established its Reproductive Freedom Project to advance a broad spectrum of reproductive rights.

Litigation continued to be the weapon of choice in this battle.

Roe v. Wade helped secure the Presidency for Ronald Reagan, by giving him a “free” issue.  It was free because he – and other “pro-life” Republicans – could strongly oppose all abortion without alienating moderate Republican women and men who favored a woman’s right to choose but felt secure in the knowledge that the Supreme Court	would continue to protect that right, regardless of what Reagan and others said or did.  Abortion thus became the most important issue for right-wing religious zealots and a marginal issue for moderate Republicans who favored a woman’s right to choose but who also supported the Republican economic and other programs.  This helped to destroy the moderate wing of the Republican Party (the so-called Rockefeller Republicans) and drove former moderates such as the elder George Bush to the right.  (He started as a pro-choice Republican and ended up as a pro-life Republican whose hands were tied by the Supreme Court.)

At bottom Roe v. Wade and Bush v. Gore represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes.  Courts ought not to jump into controversies that are political in nature and are capable of being resolved – even if not smoothly or expeditiously – by the popular branches of government.  Judges have no special competence, qualifications or mandate to decide between equally compelling moral claims (as in the abortion controversy) or equally compelling political claims (counting ballots by hand or stopping the recount because the standard is ambiguous).  Absent clear governing constitutional principles (which are not present in either case), these are precisely the sorts of issues that should be left to the rough-and-tumble of politics rather than the ipse dixit of five justices. 94 

There are, of course, considerable differences between Roe v. Wade and Bush v. Gore.  No matter how critical one may be of Roe, no one can accuse the justices who voted for it of being politically partisan, as were the 5 Republican justices were voted to step the recount and hand the election over the candidate and party for whom they had voted.

Though equality for gays and the right of a woman to choose abortion are the prime wedge issues that today divide the religious right from the rest of the country, there are other issues that also divide the country along religious lines.  Some involve religion directly, such as prayer in the public schools, the right of religious groups and persons to be exempted from laws of general application, and religious discrimination—in law or in fact—against atheists, agnostics or members of unpopular religions or “cults.”  

The difficult question of how to balance freedom of religion with the equally important freedom from religion—the two sides of the First Amendment coin—is never going to be neatly resolved in a pluralistic democracy; it is an ongoing tight rope walk that requires sensitivity from all sides.  It also requires a Supreme Court willing to buck popular pressures in this highly sensitive area that the framers of our Constitution deliberately removed from majoritarian politics.  Most importantly, it requires a collective decision by public officials of all political stripes to agree to stop running as defenders of the faith and to end the contest over who is more religious or committed to “faith.”  Religion and faith, as Jefferson recognized, are private matters and no one should be judged based on their “religious opinions, any more than [their] opinions in physics or geometry.”  With this in mind, let me end this chapter with my own “Ten Commendments” (a commandment is a cross between a “commandment” and an “amendment” that I would “commend” candidates for following:


          1.   Do not claim God as a member of your party or that God is on your side of an issue.
          2.  Do not publicly proclaim your 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 as antireligious 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 the tyranny of enforced religious uniformity and, more recently, enforced antireligious 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 our nation’s greatest leaders did not accept formal or even informal 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.




Chapter 18:  From Human Right to Human Wrongs:  How the hard left hijacked the Human Rights Agenda


The United States Constitution guarantees equality under American law, but the vast majority of the world’s population has no such legal protection.  Human rights are not limited by geographic or political borders.  They apply, at least in theory, to all human beings, regardless of nationality, race or religion.  I have devoted much of my life to trying to turn theory into reality on an international scale.  

I was brought up in the golden age of human rights.  Our heroes were Eleanor Roosevelt, Rene Casin and Albert Schweitzer.  Our great hope was the United Nations with its Universal Declaration of Human Rights.  Our mantra was FDR’s “Four Freedoms:” freedom of speech and expression; freedom of worship; freedom from want; freedom from fear.

The enemies of human rights were also clear:  fascism, communism, racism, religious discrimination, McCarthyism, authoritanism, slavery, apartheid and other forms of oppression emanating from both the extreme right and left.  

All good liberals—and my friends, neighbors and co-religionists were almost all good liberals—were kneejerk supporters of the human rights agenda?  And why not?  How could any decent person be opposed to the Four Freedoms and other universal human rights such as racial and religious equality, the ability to travel freely, the right to a fair trial and the ability of workers to join unions and collectively bargain for fair wages and working conditions.  

We all admired the United Nations and looked to it as a guarantor of peace and a protector of human rights.  And again, why not?  It had been founded in the wake of the allied victory over Nazism by nations—mostly democracies—that had been on the right side of the war against Germany, Japan and other members of the Fascist Axis.  One of the U.N.’s first actions was to divide the British mandate over Palestine into a Jewish and Arab state, thereby creating the conditions that led to the establishment of Israel.  I vividly recall watching the U.N. vote with my father on a small black and while television and cheering when ____ cast the deciding vote in favor of the two state solution (that Israel accepted and the Arab states and Palestinian Arabs rejected.)  In those golden years, there was no conflict between supporting the U.N. and supporting Israel, the only democracy in the Middle East.

                    My first confrontation with the United Nations

My earliest experiences in human rights (other than signing the petition to save the Rosenbergs, which earned me both the respect and the concern of my frightened parents, and my act of civil disobedience against the slave-owning King of Saudi Arabia, which nearly got me arrested) involved the United Nations.

When I was a junior in Yeshiva University High School, the United Nations came up with the idea of a universal calendar that would introduce a “bland day at the end of each year [that] would disrupt the 7 day Sabbatical cycle.” 95 

The Orthodox Jewish community was in an uproar about this well intentioned proposal, because it would change the natural order of when the Jewish Sabbath fell.  Under the conventional calendar, the Sabbath corresponded with Saturday.  Under the brave new world proposal, the Jewish Sabbath could fall on any day of the week.  Jews (and Seventh Day Adventists) had fought hard to recognize Saturday as a day off from most jobs and school activities.  The UN proposal would require Sabbath-observers to be absent from such activities when the Sabbath fell on a weekday.

At the time I was president of the “Inter-Yeshiva High School Council”—a group I had formed after the principle of my high school banned me from running for the presidency of the school’s student body.  I used the newly formed organization as the nerve-center for the campaign to stop the universal calendar.  We did not consider the proposal to be anti-Semitic; it was motivated by benign universalistic aspirations.  We regarded it as insensitive to the religious concerns of certain groups.

In an effort to broaden the opposition, I reached out to Seventh-Day Adventists (who joined our efforts), Muslims (who seemed less concerned about whether their day of rest corresponded with the UN’s “Friday”) and other religious groups.  The result was a postcard campaign  (I still have the postcard) in which we sent thousands of the following message—where I drafted—to the UN: 
     Ambassador Henry Cabot Lodge
     United States Delegation
     United Nations, N.Y.

     Dear Sir:

     As a student of a Hebrew parochial high school in New York, I wish to express my opposition to the World Calendar Reform proposal soon to come before the United Nations.  This proposal, which would move the Jewish Sabbath to other days of the week, would have disastrous effects on Jewish religious life, thus impairing the freedom of religion which we so cherish.  
                                             Respectfully yours,

                                             Under Auspices of the Inter-Yeshiva High School Student Council


It was a modest effort by later standards:  no marches, sit-ins or lawsuits.  But it succeeded.  The UN dropped the proposal and our small group got credit in the media.  Here is how the New York Post—my community’s “newspaper of record” in those days—reported our success beneath the headline, “Calendar Reform Tops Formosa Issue in Letters to U.N.:”
     “World Calendar reform, not Formosa, is the topic provoking most of the letters being received by Ambassador Lodge, chief U.S. representative at the U.N.  
     Of the 328 pieces of mail addressed to Lodge during the first week in April, 209 expressed opposition to world calendar reform on religious grounds.  These were the result of a postcard campaign instituted by the Inter-Yeshiva HS Council.  

The article went on to point out that Lodge had also received letters from the Oklahoma students who favored the proposal, as did some legislators.  

     However, the opposition of religious groups to calendar reform—and it came from all faiths—prevailed.  The U.S. informed Secretary General Hammarskjold that it did not favor any action by the UN to revise the present calendar.  ‘Large numbers of the US citizens oppose the plan,’ the U.S. note said.  ‘Their opposition is based on religious grounds…’”

We were thrilled that our campaign—involving hundreds not quite the “large numbers” reported—had succeeded.  We regarded it as a victory for religious freedom.  It persuaded me that even small efforts could have an impact on large organizations—a lesson that has stayed with me over my career.  And it enhanced my admiration for the U.N., which had shown sensitivity to religious minorities.  

During my high school years, my class made several visits to the U.N., where we watched the General Assembly in action.  We debated whether “Red China should be admitted to the U.N.”  I took the affirmative side.  Several of us joined “the United Nations Association,” and we participated in “model U.N.” sessions, playing the role of representatives from particular countries.  No one could have predicted, in those days, how the UN would soon become an organization dominated by human rights violators and a bystander to, if not a facilitator of, genocide, terrorism and other human wrongs by so many of its own members.  


                    What are human rights?

During my college and law school years, most of my focus was on domestic civil rights.  I marched, attended rallies, trained for civil rights work in the South, and briefly traveled to points of confrontation in several southern cities, while carefully remaining out of harm’s way.

After becoming a teacher and a lawyer, my involvement in the human rights movement broadened, both academically and politically.

In my academic work, I began to explore the meaning of the term “human rights,” as contrasted with “civil rights,” “civil liberties,” and “political rights.”  To be an advocate of “human” rights meant to me going beyond one’s particular group.  A Jew who fights only against anti-Semitism is an advocate for particular rights, as is an African-American who struggles only against racism, a woman who only opposes sexism, or a gay person who limits his advocacy to gay rights.  These are commendable activities, but they do not qualify as advocacy of human rights.  Just as joining “The First Amendment Club” requires the active defense of expression one deplores, so too, joining “the Human Rights Club,” requires an active commitment to the universal rights of all people, even those you disagree with or despise.  The membership roles of both “clubs” are, tragically, quite small under this criteria, though many claim their honorific mantles.

Being a member of the “Human Rights Club” does not require abstaining from advocacy for one’s own group (however defined).  But it does require more universal advocacy as well.  The “motto” for the club might well be the famous dictum of Hillel:  “If I am not for myself, who will be for me, but if I am for myself alone, what am I?  And if not now, when?”  I have tried hard to live by these words—which hang on the wall in my office—and to maintain my membership in the Human Rights Club, although my priorities have changed with shifting threats to particular groups over time.

As a young lawyer, I witnessed little threat to the Jewish community in America, despite lingering anti-Semitism in law firms, social clubs, and some universities and neighborhoods.  I fought against these remnants of bigotry, but it was clear that the trend was in the right direction:  top-down anti-Semitism and elite discrimination against Jews were on the way out.  Jews did not need my help.  

By this time, I had stopped being a strictly observant Orthodox Jew.  My synagogue attendees had become episodic and my involvement in the Jewish community peripheral.  The reason was my children.  Many people became more religiously committed “because of the children.”  For me, it was the opposite.  As my children got old enough to ask questions, I realized that I had remained observant only to please my parents.  I did not want to impose that obligation on my children.  I remained deeply Jewish in a secular sense—whatever that may mean—and my children were Bat and Bar Mitzvahed and attended Jewish Sunday School, but my life no longer centered around my identity as a Jew.  Nor did my legal career.  

Early in my legal career, my first wife, who was also an Orthodox Jew, and I were divorced.  I assumed primary responsibility for the raising of our two sons.  A decade after the divorce I met and soon married Carolyn, who was raised as a sometime Reform and sometime Conservative Jew in Charleston, South Carolina.  Together we live a life dedicated to more secular Jewish values.  I dedicated my first book about my brand of Judaism—Chutzpah—to Carolyn.  Carolyn’s family participated in the struggle for civil rights in Charleston, and we are both deeply committed to universal human rights.  

In the early phase of my career, I didn’t focus on Jewish rights or on Israel.  There were bigger and more serious problems facing America, particularly with regard to race.  There were also more serious problems around the world:  Apartheid in South Africa; repression in the Soviet Union, China, South America and Saudi Arabia; an unjust war being fought by my own country in Vietnam.  I threw myself into these causes (as well as into the worldwide campaign to abolish the death penalty).




                    The Vietnam War

During the height of the conflict over the Vietnam War, I represented numerous defendants, protestors and civil disobedients.  I also advised lawyers who were suing the government in an effort to stop what they believe was an illegal war.  The faculty of Harvard Law School was divided over the morality, legality and effectiveness of the war, and there were interesting discussions in the faculty lunch room involving such luminaries as Archibald Cox, Erwin Griswold, Abram Chayes and Paul Freund.  I decided that these discussions should be shared with our students, and so I organized the first law school class on the Vietnam War.  The debate over the war was a teaching moment and we had to take advantage of it.  I prepared a set of legal materials and invited professors with different views to share their perspectives with the students.  The course was a remarkable success.  Students attended in droves, and the media covered the lectures.  The New York Times story was headlined “400 Enroll in a Harvard Course on ‘Law and the Lawyer’ in the Vietnam War.”  It reported that:

     According to Prof. Alan M. Dershowitz, who conceived the course, more than a dozen professors have volunteered as teachers, including Prof. Derek C. Bok, the dean-designate of the law school.

     Professor Dershowitz said that the participating professors “reflect every view.”  However, he said that he “majority,” including himself, were signers of a statement released last week in which 500 of the nation’s law teachers called upon the legal profession to oppose the Johnson Administration’s Vietnam war policy.
     Professor Dershowitz said he understood that the course would be the first of its kind offered in any law school in the United States.  “It is our hope,” he said, “that this will be a pilot and a model for other law schools throughout the country.”  

     Dr. Dershowitz said that the idea for the course grew out of the fact that “much student and faculty energy was being devoted to thinking about and writing about Vietnam, and the legal issues growing out of it.”

     He said the course would not be “biased or political,” but would “look at these issues in a detached, lawyer-like, scholarly way.”…

     Mr. Dershowitz, whose specialty is criminal law, said he became involved in planning the course because “I’m very interested in legal education, and terribly concerned about law schools being at the center of contemporary issues.”
     “Can you imagine a law school which is supposed to be dealing with the major issues of the day not teaching a course relating in some manner to the Vietnam War, which is the critical social issue of our time?”

     As evidence of the courses appeal, Professor Dershowitz said that the 400 registrations represented the largest enrollment for any course at the school, which has about 1,500 students.  

     “It was all done with little publicity and little fanfare, and we gave only two days for registering,” he said.

     The objective of the course, Professor Dershowitz said, would be “to assess the role of the lawyer, as professional and citizen, in both the domestic and foreign aspects of the conflict.”  He said the course would explore “the relevance of law to this country’s involvement in Vietnam.” 96 

Time Magazine began its story this way:

     “Viet Nam is the most significant social, political and legal issue of the day,” said Harvard Law Professor Alan Dershowitz last week.  “And a law school should be concerned with the issues of the day,” Dershowitz had just finished giving the first class in a brand-new, ten-week Harvard course entitled “The Role of the Law and the Lawyer in the Viet Nam Conflict.”  It has no exam or grades, offers no credit, and involves a good deal of reading over and above the students’ already heavy regular work load.  But it has a record enrollment of more than 400—one-quarter of the student body—and is one of the most popular courses in the 150-year history of the school.  
     The course will cover such questions as the international-law aspects of the war, the division of war-making responsibility between the President and Congress, free speech and dissent, the draft and the rights of an inductee, and the status of a conscientious objector to a specific war.


Lawyers who were contemplating legal action against the war sat in on the class and several faculty members, who were not involved in the teaching, attended as well.  I received dozens of requests for copies of the materials from professors at other schools who wanted to offer the course to their students.  For me, it was the beginning of a practice that I have followed throughout my teaching career:  offering courses about highly relevant contemporaneous issues that respond to interesting teaching moments.  Over the half-century of my teaching at Harvard Law School, I have offered a new course just about every year.  Many of them have dealt with pressing issues of human rights generated by the conflicts of the day. 

In addition to teaching courses I wrote article on human rights and brought lawsuits challenging human rights abuses.  And I participated in political campaigns to end apartheid, the War in Vietnam and other human wrongs.  My early work on human rights won me a coveted Guggenheim fellowship and other honors.  It also earned me the media title “Global Watchdog.” 97  In an article by that name, the reporter interviewed me about my definition of human rights:

     “I’m less concerned with causes than I am with concepts of equality, fairness, due process, civil liberties, and free speech…” 

     “I’m certainly a civil libertarian, although I don’t like that term.  I prefer to think of myself as an advocate for human rights…”  Dershowitz’s definition of human rights is uncomplicated.  He applies to the world at large a “core concept of human rights”—everyone should be free to express opinions and views, to read what one chooses, to have some influence in the process of government, to leave one’s country.  One should be free from arbitrary arrest and trial, torture and execution.

     Wherever human rights are trampled, Dershowitz feels compelled to lend a hand, if possible.  “I try hard to balance my attack, right and left—for every attack on the Soviet Union, there’s one on Chile.  For every attack on a right-wing repressive government, there should be an attack on a left-wing repressive government.”

     Dershowitz’s strong personal identification with human rights goes back to his roots.  “There but for the grace of my great grandparents go I,” he paraphrases.  “If I were a 39 year old citizen of Kiev or wherever, I sure as hell hope I’d be a dissident and I suspect that there would be someone here trying to get me out.”

     “If there is discrimination against anybody, there is discrimination against everybody,” he says flatly, which explains his decision to defend John Lucido, a Catholic Italian lawyer, who filed suit against Cravath, Swaine and Moore, charging that the firm had failed to promote him to a partnership because of his nationality, his religion or both.”

     Dershowitz loves to teach and has integrated some of his human rights experiences into a seminar which he taught this spring with Visiting Professor Telford Taylor ’32, pioneer in the international protecting of human rights.  The seminar taught future lawyers how to defend foreign dissident clients and how to promote human rights in other nations.  

     “I think there are always between 30 and 100 students at the School who are really interested in these issues.  That’s not to say that all of them, or even half of them, will ultimately involve themselves in the human rights struggle but at least they will be in a position to make substantial contributions in the area during their career.”

     This is one of the basic reasons for his remaining in teaching.  As Dershowitz puts it, “In practice you can do a lot to implement human rights in this generation but in teaching you can both help this generation and help plant the seeds for progress later on.”


Despite my deep involvement in human rights work, I wondered whether I was really having a discernable impact on the problems of the world.  Unlike litigation in American courts, where the results are immediately evident, the impact of petitions, op ed articles, Congressional resolutions, and other conventional human rights activities on foreign countries tends to be less visible or immediate.

I will never forget one encounter that made it all seem worth the apparently unrewarded efforts.  I attended a concern by the great Russian cellist Mstislav Rostropovich, several years after he left the Soviet Union.  Since he had been a sometimes threatened advocate of human rights in Moscow, I wanted to meet him, so I stood in line waiting to shake his hand after the performance.  When I introduced myself, he grabbed me in a long bear-hug.  “You gave us hope,” he told me.  “We knew you were out there fighting for our rights, even thought we couldn’t contact you.  You made us feel safer.”

I had no idea that Rostropovich or any of the other artists or dissidents whose rights we advocated, had ever heard of us, or had any idea of what we were doing on their behalf.  Rostropovich’s hug, and what he said, was more than enough compensation for all the pro-bono work we had done on behalf of dissidents and artists around the world.  

I had become involved in the defense of Soviet dissidents after reading Elie Wiesel’s eye-opening book “The Jews of Silence,” which first alerted me to the plight of Soviet Jewish and non-Jewish dissidents.  I traveled to the Soviet Union and other parts of Eastern Europe on several occasions during the 1970s and 1980s and filed briefs on behalf of dissidents Refusenicks and others.  I have written extensively about this aspect of my human rights work elsewhere 98  and will not repeat it here.  Suffice it to say that my unwillingness to limit my advocacy only to Jewish Refusenicks in the Soviet block caused a rift with some Jewish and Israeli organizations, but I insisted that human rights must extend to all who are oppressed or discrimination against. 

One of my Soviet clients was Silva Zalmunsen, who after several years of confinement was finally released from the Soviet Gulag.  When she finally came to America, I along with her other American lawyers arranged to meet her over lunch at Lou Siegel’s, a kosher restaurant in Manhattan.  It would be our first “reunion” – hopefully the first of many – with the clients we had never met.  Our encounter was emotional and tearful.  Knowing of Silva’s love for all things Jewish, we decided to order a real old-fashioned Jewish meal for our Friday lunch.  The first dish was cholent, a delicious concoction of beans, potatoes, barley, and a small amount of beef, cooked for hours in a savory sauce.  When the cholent came, I turned to Silva and explained what it was – that it was a traditional dish served in Jewish homes on the Sabbath.  She took one taste of it, and her face turned sad – and then she burst out laughing as she exclaimed, “Traditional Jewish food?  This is Russian prison food!  I’ve just been through eating food like this for four years!”  Only then did we realize that the old-fashioned food, which was such a treat for us, was peasant food, designed to use the least amount of meat possible.  The same economics that dictated the diets of our peasant forebears now determined the menus prepared by the prison authorities.  We all had a good laugh, and I ordered a slice of rare roast beef for our guest.

I made several trips to the Soviet Union during that time.  On one of them I met a young man who had been a dissident and refusenick but who had been drafted into the army because of his activities.  He wanted to smuggle a message out in is own voice, using his broken English, to seek support from human rights organizations throughout the world.  Tape recorders were not permitted in the Soviet Union at that time and it was illegal to smuggle out tapes.  But he had managed to get his hand on a primitive cassette recorder and he brought me a copy of a Tchaikovsky tape that was being sold in the Soviet Union.  In order to prevent re-recording over the tape, certain changes had been made in the cassette.  My Soviet client knew how to override those changes and he managed to record his statement in lieu of the third movement of Tchaikovsky’s Fifth.  He told me that its always good to have the recorded statement in the middle of the music, because Soviet authorities tend to listen to the beginning and end of any music tape to assure that it does not contain forbidden material.  I managed to get his statement back to the United States.  Shortly thereafter he was released and came to live in my home while he was trying to get into school here.  

My interest in Soviet Jewry was stimulated by Elie Wiesel’s wonderful book The Jews of Silence.  But it became a passion only after a more personal encounter.  In 1971, I was invited to become a fellow at the Center for Advanced Study in the Behavioral Sciences on the Stanford campus in Palo Alto, California.  Forty fellows were invited from all over the world, to spend the year writing and thinking.  This year for the first time, a fellow had been invited from Communist Romania, Michael Cernea.  He was Chairman of the Department of Sociology and Anthropology at the University of Bucharest and an active member of the Romanian Communist Party.  On the day before Rosh Hashanah, he invited me to take a walk with him through the woods.  When we were away from any possibility of surveillance he told me that his real name was Moishe Katz, that he was a committed Jew, and that he desperately wanted to defect along with his family from Communist Romania and move either to the United States or Israel.  He swore me to secrecy and asked if I would become his pro-bono lawyer in what would surely be a long-term activity, since his family was being held hostage back in Romania.  I immediately agreed and invited him to my home for dinner that night, where we stayed up until dawn, listening to Jewish cantorial music, which he had not heard since his youth some thirty years earlier.  Tears flowed freely from his eyes.  Several years later, we were able to arrange for him and his wife to be out of the country at the same time, and they both defected, leaving his two children and his elderly mother behind.  But within a year or so, with the help of Senator Kennedy and others, we managed to get the whole family out.  We have remained close friends since that time.

Another close friend who started out as a client is Natan Sharansky, now a cabinet member of the Israeli government.  When I represented him his name was Anatoly Sharansky and he was an imprisoned Soviet refusenick.  His mother and wife asked me, along with my friend and colleague Irwin Cotler, now the Minister of Justice in Canada, to represent Anatoly on a pro-bono basis.  We continued to be his lawyer for nearly nine years.  We were not allowed to meet our client or even to communicate with him.  For all we knew, he had no idea we were his lawyers.  But we represented him vigorously in the court of public opinion as well as in the courts of the Soviet Union.  We were also involved in proposed prisoner exchanges which included Sharansky, Nelson Mandela and several Eastern European spies being held by the United States.  Neither Sharansky nor Mandela wanted to be part of any exchange for real spies, since they were political dissidents.  It is interesting to note, a especially in light of Sharansky’s high position in the Israeli government, that when Sharansky was first arrested, the Israeli government wanted to have nothing to do with his case, since they regarded him as a human rights dissident rather than as a prisoner of Zion.  He was, of course, both.  When he was finally released some of the very same people who fought hardest against Israel doing anything on his behalf were among the first to claim credit for his release.  

I will never forget how I watched my client walk - - really bounce - - across the Glinicke Bridge and into the safety of the West.  I knew he was well even while watching him on television.  Shortly thereafter I met him in person for the first time.  He threw his arms around me and whispered in my ear, “Baruch matir asurim,” which means, “Blessed be those who help free the imprisoned.”  Several years later I was being interviewed on a television show and the host asked me what my biggest fee had been.  He thought I would mention the Michael Milken or Leona Helmsley cases, but instead I said it was in the Sharansky case.  He expressed surprise saying that he didn’t know Sharansky had any money.  I said he did not but that when he put his arms around me and gave me that hug and whispered those words, that was the biggest fee I ever earned.


Another “fee” for my work was the opportunity to speak in Carnegie Hall on behalf of Vaclav Havel and other dissident artists in 1991.  Several Americans who had fought for the human rights of censored artists were invited to read from and discuss works banned by repressive regimes.  I had been part of a team of lawyers assembled to help Havel and other Czeck dissidents get out of prison in the 1970s.  The American readers included Garrison Keillor, Marvin Hamlisch, Peter Ustinov, William Warfield, Martin Garbus, and Maurice Sendak.  I was honored to be included among them.  My mother loved showing her friends the Carnegie Hall program, with my name listed as a “performer.”  She would tell them a variation of the old joke:  A man asks a musician carrying a violin case, “How do you get to Carnegie Hall?  My mother’s answer:  “Practice, practice, practice law, like my son.”

My next encounter with Havel took place in Jerusalem during the celebration of Israel’s 60th birthday.  Havel, Sharansky and I were on a panel together discussing human rights.  When it was over we got onto the same elevator.  Remarkably, Mickael Gorbachev was also on the elevator.  (I knew it sounds like the beginning of a bad joke:  “Havel, Sharansky, Gorbachev and Dershowitz get into an elevator.”)  Gorbachev turned to me and said, “You’re the big shot lawyer who tried to get these people out of prison.  You did a good job, but I did a better job.  I’m the one who got them out.”  We all laughed and Havel turned to Gorbachev and asked, “Why didn’t you get us out sooner?”  Gorbachev replied, “I’m not that good.”  




                    The struggle against real Apartheid


My interest in South Africa Apartheid began while I was editor-in-chief of the Yale Law Journal in 1961.  An article was submitted on the legal structure of the apartheid system in the country.  At that time very little was known about the legal aspects of this highly regulated practice, and this lengthy draft laid it all out.  It was my job to edit it so as to make it comprehensible to an American audience.  It was shocking to me that only a few decades after the Nuremburg Laws in Nazi Germany, a “civilized” country, with a British and Dutch heritage, could construct a system of laws based on overt racism and discrimination, under which racial classifications determined who could vote, hold certain jobs, live in certain areas, be treated in good hospitals, attend public events, enroll in schools and hold office.  I was determined to help dismantle the system of apartheid and actively joined in the campaign against it.  But there were limits to what I was prepared to do, and these limits brought me into conflict with some of the most ardent anti-apartheid activists.  Most particularly, I was not willing to support the “blacklisting” or artists who had performed in South Africa.  To me, this blacklisting constituted reverse McCarthyism, even if it is in the interest of a just cause.

I wrote an article in 1985 exposing and condemning this new liberal McCarthyism.  It included the following:

                         …

     This time, blacklisting is being practiced in the name of a progressive cause—the antiapartheid movement.  

     It turns out that the Register of Entertainers to be shunned is officially published by the United Nations Special Committee Against Apartheid “as a means to promote the cultural boycott of South Africa.”  It included the names of entertainers and actors who have performed in South Africa since 1981.  Anyone whose name appears on the list is prohibited from performing at any function sponsored by the United Nations.  Other organizations also use the U.N. blacklist to screen politically unacceptable artists.

     The introduction to the U.N. blacklist boasts that “a number of city counsels and other local authorities have decided to deny use of their facilities for entertainers” whose names appear on the blacklist.  
                    …

     No advance notice is given to persons who are to be blacklisted, and the list includes some performers who “were not aware of the cultural boycott.”
     Among those currently on the blacklist are Ray Charles, Linda Ronstadt, Frank Sinatra, the Beach Boys, Cher, Goldie Hawn, Sha Na Na, Ernest Borgnine, and the British rock group Queen.

     The recent flap that publicized the existence of the U.N. blacklist involved a proposed concert to raise money for African famine relief.  Among those volunteering to perform was the rock group Chicago.  But Chicago was on the blacklist.  And because of the absolute prohibition against using blacklisted artists at U.N.-sponsored events, plans for the concert had to be postponed.  It is ironic that some black African children may die of hunger because of the U.N. blacklist.  

     The American Civil Liberties Union recently complained loudly when the Boston Symphony Orchestra canceled a concert with Vanessa Redgrave because of her support for and complicity with…terrorists.  Though no blacklist was published, the ACLU decried the “blacklisting” of Ms. Redgrave because of her politics as a violation of her civil liberties.  I am waiting to hear from the ACLU on the U.N. blacklist.  

I never heard from the ACLU, but I did hear from Woody Allen, to whom I sent my article because his film The Front had exposed the evils of blacklisting and he was also a strong opponent of apartheid.  He wrote me that:  

     “On the face of it the issue certainly seems to me like blacklisting.  I’m sure they make good arguments for it on the basis that a legitimate tactic of the United Nations is boycotting, but still I’m sure that if I examined it as closely as you have, I would find there would be no excuse for it.  Thanks for keeping me informed.  Best, Woody.”

During the Apartheid regime, I was invited to speak at the Witwatersrand University in Johannesburg.  Many in that university had been on the forefront of opposing Apartheid and I was anxious to lend support to these efforts by delivering a strong human rights message.  When I appeared at the South African consulate in Boston to receive my Visa, the Counsel General was well prepared:  he had on his desk the Yale Law Journal article I had edited.  He told me that before he could consider my application, he wanted to see a copy of my proposed speech.  I declined his request, citing freedom of expression.  I did not receive the Visa and had to postpone my first visit to South Africa until after the end of apartheid.

I had hoped not only to speak against apartheid during my aborted visit to South Africa, but also to try to get to Robin’s Island to meet with the imprisoned Nelson Mandela.  I was working with Professor Irwin Cotler, with whom I had taught human rights at Harvard Law School, on a complicated legal plan to free Mandela.  

Our plan began following the arrest of an East German professor in Boston on charges of spying for his country.  I received a call from an East German lawyer asking if I could represent him or recommend a good lawyer who could.  The East German lawyer—who was a well known and trusted “spy-swapper”—told me that his client was innocent, but that the East German might be willing to arrange a “spy swap” for my client Anatoly Sharanksy.  I told him that my client wasn’t a spy so a “spy swap” was off the table.  He responded “neither is my client.”  He then proposed a possible “prisoner exchange, including prisoners who were accused of spying but were innocent.”  It was an interesting idea.

I then called my friend and colleague Irwin Cotler in Canada and told him of the call.  He was, at the time, working on both the Sharansky and Mandela case, and he had previously sought my advice on the Mandela matter.  He suggested that we inquire whether there were any South African spies in Soviet Block prisons, and whether South Africa might be willing to release Mandela as part of a prisoner exchange among several countries.

In the end, Sharansky was exchanged for the East German man (who was represented by other lawyers), but we learned from the African National Congress lawyers with whom we were conferring that Mandela refused to participate in any prisoner exchange, particularly one that involved anyone accused of spying.  He wanted to be released on his own terms, even though his decision would require him to remain imprisoned until his own terms were accepted by the South Africa government, as they finally were in 1990.

My negotiations with the East German lawyer were shrouded in secrecy and had elements right out of a John Le Carre novel.  We used code words over the phone and met in out of the way places at unusal times.  He was a man of his word and could always be counted on to honor his commitments.  After the fall of the Berlin Wall, he was indicted on an assortment of concocted charges and he sought my help, which I was pleased to give.  Eventually, he was cleared of all charges and continued to practice law in the newly united Germany.

                    Human rights in Israel

A human rights case that surely tested my commitment to universal rights involved an Arab-Israeli who was accused by Israel of assisting terrorism.  He was being held in administrative detention, instead of being formally charged with a crime.  I was in Israel at the time writing a long article on the practice of administrative detention (or as Americans call it “preventive detention”).  I was critical of the practice though I understood why some Israelis believed it was necessary to combat terrorism.  After meeting the Israeli-Arab in the detention center and reviewing his case, I concluded that his detention was unjustified.  I met with Israeli officials and urged them to reconsider his case.  They did, and they released him.  He moved to Lebanon where he became an active member of the more moderate wing of the Palestine Liberation Organization.  To my knowledge, he has never engaged in any acts of terrorism.  

I helped several other Palestinian prisoners and detainees as well.  I also wrote critically of and litigated against several Israeli policies, including the use of unacceptable interrogation methods, the overuse of wiretaps, religious discrimination against women, and de facto discrimination against Israeli Arabs.  Since the early 1970s, I have been a vocal and persistent opponent of Israeli settlements in the West Bank and Gaza.  And after the war in Lebanon, I protested the use of cluster bombs that, though lawful, unduly endanger the lives of civilians.  I have never believed that my strong, general support of Israel is in any way inconsistent with my opposition to, and criticism of, specific Israeli policies which violate neutral principles of human rights.  

                    Human rights and wrongs in China

In 1979, Senator Edward Kennedy asked me to travel to China and report back to him on the condition of human rights.  The cultural revolution was just ending, and the first sparks of freedom were being ignited at a place in Beijing called “Democracy Wall,” where dissidents gathered and posted anonymous notes.  I was to be one of the first human rights advocates allowed into what had long been a closed society.  Senator Kennedy, with whom I worked closely on numerous human rights issues, was the key to why I was invited not only to visit prisoners and courtrooms, but also to lecture on criminal law in several of China’s most important universities.  Although I was invited to lecture exclusively on technical aspects of criminal law, in order to help China develop a modern penal code, I managed to smuggle some discussion of human rights into my lectures.

During my visit to several prisons, I learned about a legal provision that seemed unique to China.  When the sentence of death was imposed for certain types of crimes, the condemned prisoner was sent to a particular institution to await execution.  After about a year, half of the condemned would actually be executed, while the other half would be spared.  All the condemned were competing against each other in a zero sum game, in which the stakes were life and death.  The “winners” were selected not only on the basis of good behavior—needless to say, everyone in this high stakes game was on their best behavior—but also on their commitment to Maoism and their “worthiness” to live.

I’ve been to many prisons and on numerous death rows, but I’ve never experienced so grim a place as this “life or death row,” where every inmate saw every other inmate as a competitor in the quest to remain alive.

The warden invited me to play basketball with the inmates and I agreed.  No one fouled me, trash-talked me or in any way misbehaved, as the warden watched, notepad in hand. I was conscious throughout the 30 minute game that anything a player did or didn’t do could become part of their score of death—or life.  I tried hard to make everyone look good in the eyes of the warden.  


                    The changing consensus regarding human rights

By the mid-1970s, the consensus regarding human rights was beginning to change.  Although the Soviet Union had long used the language of “human rights” (as well as the language of “civil rights”) as a club against western democracies, few serious people gave this hypocritical ploy any credence.  “There they go again” was the general response when Soviet diplomats at the United Nations postured against the imperfections of the United States, while their Communist masters locked up dissidents, made a mockery of justice, 99  and kept entire nations in subjugation behind an iron curtain.  

By the early 1970s, however, the Soviet ploy was beginning to be expropriated by the hard left in the United States and Europe.  Hard left intellectuals such as Professors Noam Chomsky of MIT and Richard Falk of Princeton were claiming that the United States was the worst human rights violator in the world. 100   Some hard left lawyers, such as William Kunstler, refused to say anything critical of the human rights records of the Soviet Union, China, Cuba or other “socialist” countries, while railing against the human rights violations of the United States and its allies.  As I previously mentioned, Angela Davis, who I had helped to represent in the early 1970s, refused to speak up for Soviet dissidents and in fact supported Soviet repression of “fascist opponents of socialist democracy,” i.e., dissidents and Refusenicks.  Another client, Abby Hoffman, also turned against me.  I was part of the legal team in the Chicago Seven case that grew out of demonstrations during the Democratic National Convention of 1968.  Abby Hoffman, who was one of the defendants, had allegedly made some crude remarks about how his “Jew lawyers” cared more about Israel than America.  I called him out on his comments in a brief note, to which he responded with an angry handwritten two page letter which included the following:  
     “I never made a remark about my ‘Jewish Lawyers.’  I might have spoken more positively about the PLO but I would never make an anti-Semitic juxtaposition such as you think you heard.  If you read my current autobiography you will see I flaunt my ‘Jewishness’ at every turn of the road.”  
At the time Hoffman penned these words, the PLO was a terrorist gang that was hijacking airplanes, murdering civilians and blowing up synagogues, and Israel had not yet established any settlements in occupied areas.

At about the same time, another radical client fired me because he heard that I was a “Zionist” and he could have nothing to do with anyone associated with such a “fascist” cause.  

Father Daniel Berrigan, a lapsed Catholic priest who had become the darling of the hard left as the result of his anti-Vietnam War activities, began to call both the United States and Israel “criminal” entities. 101   Chomsky notoriously defended the ruthless Cambodian dictator Pol Pot against charges of genocide, insisting that western media reports of millions of murders were typical exaggerations of horrors regularly but falsely attributed to Communist regimes.  The National Lawyers’ Guild, which had become the legal arm of the hard left, dismissed all accusations against Communist regimes as “red baiting.”  They also became the legal arm of anti-Israel extremists, including terrorists.  They did not support these clients on grounds of human rights or civil liberties principles, but rather because they agreed with their politics.  In 197__, I broke with the National Lawyers Guild, with which I had worked closely when it had been a neutral human rights organizations.  In a widely read article in The American Lawyer, I told the sad story of the transformation of the NLG from a genuine human rights organization into an advocate for some of the worst human wrongs on the planet.  This transformation presents in a microcosm the larger account of the hijacking of the human rights label and agenda by the hard left.  

The National Lawyers Guild was established in 1937 as an antidote to the American Bar Association, which was then fighting the New Deal, excluding black lawyers from membership, and opposing the labor movement.  The original guild was an amalgam of Roosevelt liberals, CIO labor leaders, black civil rights lawyers, and radicals of assorted affiliations and persuasions.  It strongly supported Israel’s struggle for independence and opposed the arms embargo against the Jewish state.  Its membership over the years has included such distinguished lawyers as Thurgood Marshall, Arthur Goldberg, Ferdinand Pecora, Paul O’Dwyer, Louis Boudin, and William Hastie.  During its early years, splits developed between the anti-Communist liberals and the radicals.  But the guild survived and accomplished much good on the domestic front, including an excellent record of providing legal assistance to the civil-rights, labor and anti-war movements.  In the late 1960s and early 1970s, at the height of the antiwar movement, the guild began to be taken over by younger, more militant lawyers from the New Left.  As George Conk, an admiring guild historian and a former editor of the monthly Guild Notes, describes it:  “At the Boulder [Colorado] convention in 1971, the young veterans of the antiwar movement found they had the guild in their own hands, and many older members withdrew from active membership.”  Law students and other “legal workers” were also admitted, thus strengthening the hold of the young radicals but reducing the percentage of actual lawyers in the guild to less than half.  The guild no longer considered itself an alternative bar association but rather the prime organizer of “radical legal people” and the legal arm of the American radical Left.
     While all this was happening at home, the radical Left was beginning its campaign against Israel.  In a highly publicized speech delivered on October 19, 1973—a speech that many people see as the original declaration of war by the radical American Left against Israel—the Reverend Daniel Berrigan described Israel as “a criminal Jewish community” that has committed “crimes against humanity,” has “created slaves” and has espoused a “racist ideology” reminiscent of the Nazis, aimed at proving its “racial superiority to the people it has crushed.”  Berrigan also chastised the “Jewish people,” whom he described as “so proud” and so “endowed with intelligence,” but who “have in the main given their acquiescence or their support to the Nixon ethos” which has led to the death, maiming, and displacement of “some six million Southeast Asians.”  Berrigan referred to the ironic figure of 6 million as “one of those peculiar facts which must be called free-floating” and concluded with a veiled threat to both American Jews and to Israel:  “To put the matter brutally, many American Jewish leaders were capable of ignoring the Asian holocaust in favor of economic and military aid to Israel … It is not merely we nor the Vietnamese who must live with that fact.  So must Israel.  So must the American Jews.”

     Reaction to Berrigan’s polemic was swift and sharp, especially among lawyers who had represented left-wing causes and individuals.  Battle lines were quickly drawn.  Some, like William Kunstler, supported Berrigan.  Others – among them lawyers who had represented Berrigan and Kunstler – were appalled at Berrigan’s diatribe.


     In 1970, the guild sent a delegation to the Congress of the International Association of Democratic Lawyers – an organization consisting largely of Communist lawyers from Eastern Europe and “progressive” lawyers from Western Europe.  The International Association of Democratic Lawyers passed a resolution supporting Palestinian terrorism, characterizing it as “heroic” and “legitimate resistance and … the expression of a national liberation movement constituting an integral part of the world struggle for liberation against imperialism.”  The guild delegates were subjected to considerable pressure from the PLO to conform their organization’s policy to the consensus of “democratic” and “progressive” lawyers.  It agreed, therefore to commit “the resources of the organization to continuing and expanding our internal political education on the Palestinian question.”

     As part of this educational process, the guild subsequently decided to send what it called an objective delegation to the Middle East.  The organizer of this “objective” group was Abdeen Jabara, the founder of the Association of Arab-American University Graduates and the editor of Free Palestine, a paper that justified the planting of terrorist bombs in universities and marketplaces.  Jabara arranged for the funding of the three-week, ten-person trip and for its itinerary.  The major funding for and sponsorship of this objective educational adventure came from none other than the “objective” Palestine Liberation Organization.

     The grateful delegation showed its appreciation for the PLO grant by beginning its education in PLO camps and, according to one member of the delegation, limiting its interviews almost exclusively to PLO-approved Palestinians and Israeli anti-Zionists.

The resulting report contained few surprises:  it presents a sordid caricature of Israel as a repressive totalitarian society which tortures, imprisons, and expels its Arab population without even a semblance of reason or justification.  Nowhere in the report’s 127 pages is there any discussion of the PLO terrorism that plagued the civilian population of Israel and the West Bank.  Indeed, the single mention of terrorism that I was able to find in the report is a quoted reference to “acts of terrorism” by Israeli authorities against the peaceful Arab occupants of the West Bank.

The resulting one-sided report, which violated all the rules of an organization that had long claimed to be a neutral advocate for universal human rights in the spirit of Eleanor Roosevelt, was according to Guild old-timers, designed as a litmus test for its Jewish members:  

     “Basically … you had a situation where a bunch of Third World types wanted to ensure that the Jews in the guild – and the Jews were almost certainly a majority – would be forced to eat crow, to choose sides.  The guild changed dramatically in the late 1960s and early 1970s, when the veterans of the early days were displaced by the veterans of campus unrest who had gone from SDS to law schools around the country.  They’re angry, and rigid, and there’s no better test of their control of the guild than forcing the old-timers to grovel, and there’s no better evidence of their own militance – if they’re Jews – than toadying up to the PLO.  Endorsing the PLO has become a litmus test for Jewish radicals.”

I decided to devise a litmus test of my own to challenge the bona fides of the Guild’s claim that it was still a neutral human rights organization.  I called Professor John Quigley, the national vice-president of the guild.  After learning that the guild had decided to send an observer to a trial of an alleged terrorist in Israel, I requested that the guild also send an observer to the Soviet trial of Anatoly Shcharansky.  It was the belief of several experts on Soviet law that a request by the guild to send an observer to the Shcharansky trial could have had a unique impact on Soviet actions, since the Soviet Union has a close relationship with the International Association of Democratic Layers and its constituent members.  Professor Quigley was extremely candid in his response to my request.  He told me that he doubted the guild would be willing to send an observer to a Soviet trial, since the “reality” of the situation is that a considerable number of the guild members approve of the Soviet Union and would not want to criticize a Soviet judicial proceeding.  In his written response, claiming that the guild could not act on my request in time for the Shcharansky trial, he put it somewhat differently:

     “The problem is that we do not approach matters such as this purely from a human-rights perspective.  We regard it as well from the standpoint of the importance of focusing attention on human-rights violations in a particular country.  With respect to the U.S.S.R., we have not had discussion or come to any decision about the appropriateness of focusing on human-rights issues there.”

The only conclusion one can reasonably draw from the guild’s reluctance to send observers to the Soviet Union, coupled with its willingness to send observers to Israel, is that the guild is as unwilling to criticize Communist countries as it is eager to criticize Israel and other Western democracies.  

In my article I put the choice to the Guild:

     “If the guild decides to continue its foray into international politics, it will have to make a choice:  either to perpetuate its double standard on human rights, which will surely alienate much of its support here at home for its domestic programs; or to report honestly on human rights throughout the world, which will surely alienate the PLO and the Soviet Union.”

The Guild decided to abandon any pretense of reporting neutrally on human rights and has continued to serve only as the legal and political arm of the hard left.  It has now lost all of its credibility as a human rights organization.  

Nor was the Guild alone in shifting from “a purely human rights perspective” to a largely political perspective that used the label of human rights selectively against its ideological enemies.  Other organizations which were founded on the principles of neutral human rights, such as Human Rights Watch, 102  the Carter Center and Amnesty International, 103  have been hijacked by hard left ideologues who focus disproportionate attention on imperfect democracies at the expense of victims of far more serious human rights abuses by tyrannical regimes.   

The worst offender in this inversion of human “rights” and “human wrongs” has been the U.N.  When my mentor Arthur Goldberg was appointed as United States Ambassador to the U.N. in 1965,  [check year] he asked me to help him in an informal capacity as an advisor on human rights and matters of international law.  

I worked closely with him on a number of such issues, meeting with him regularly in New York.  In 1967, following Israel’s victory in the Six Day War, Goldberg asked me to consult with him on the drafting of Security Council Resolution 242 which sought to provide a framework for peace in that troubled part of the world.  The Resolution, which was carefully crafted in diplomatic language—“U.N. speak”—called for Israel to return “territories” (not all territories or even the territories captured in the defensive war) in exchange for recognition by the Arab stated and secure borders.  Israel accepted 242, but the Arab nations held a conference in Khartoum, where they issued their 3 infamous “no’s.”  “No peace. No negotiation.  No recognition.”  This led Israel’s U.N. representative Abba Eban to quip that “this was the first time in history that the winners of a war sued for peace, while the losers demanded unconditional surrender.”  [get exact quote]  

From that point on, the U.N. (most particularly the General Assembly, the Human Rights Council, Unesco, and several other agencies) began its downhill spiral away from neutrality and toward becoming an organization focused almost exclusively on the imperfections of democracies such as the United States and Israel, while virtually ignoring genocides and repressions by non-democratic nations.

The year 1975 was perhaps the Apex (or Nadir) of the inversion of human rights, especially at the United Nations.  While Pol Pot was murdering millions, how did the world community react?  Surely the murder of so many innocent people would prompt the United Nations to swift preventive action.  And yet, just as it did during the Holocaust, the world community did absolutely nothing to prevent the atrocities.  Indeed, not only did the United Nations take no action, but its major bodies refused even to condemn the genocide until after the killing was completed and at least 1.8 million people lay dead.  The General Assembly, for instance, did not mention Cambodia in a single resolution until November 1979—nearly a year after the genocide’s end.  Even then the resolution was framed in terms of sovereignty and did not mention specific human rights violations, let alone genocide. 104   Only in 1980, nearly five years after the atrocities began, did the UNCHR finally pass a resolution condemning the genocide.

The hard left was similarly uninterested in the Cambodian genocide.  While millions were being murdered, many leftists dismissed the atrocities as western propaganda.  Activists Gareth Porter and George Hilderbrnd wrote, “Cambodia is only the latest victim of the enforcement of an ideology that demands that social revolutions be portrayed as negatively as possible, rather than as a response to real human needs….”  According to the pair, what “was portrayed as [the Khmer Rouge’s] destructive backward-looking policy motivated by doctrinaire hatred was actually a rationally conceived strategy for dealing with the problems that faced postwar Cambodia.”  Noam Chomsky also dismissed the genocide, writing that “if Cambodian terror did not exist, the Western propaganda systems would have had to invent it, and in certain respects they did.”  He unabashedly wrote that blaming solely the Khmer Rouge for deaths from malnutrition and disease was as “if some Nazi apologists were to condemn the allies for postwar deaths from starvation and disease in DP camps.”  

Instead of focusing on the savage mass murder of more than a million civilians in Southeast Asia, the global community chose instead to use its limited time and resources to try to delegitimize Israel.  Just a few months after the Cambodian atrocities began, the General Assembly adopted the most infamous resolution in its history, resolution 3379, declaring that “Zionism is a form of racism and racial discrimination.” 72 countries voted in favor, including, ironically, Cambodia.  35 voted against and 32 abstained.  This and other similar actions by the General Assembly led Abba Eban to proclaim that if Algeria offered a resolution than the earth was flat and Israel flattened it, it would pass 72 to 35, with 32 abstentions.  The United States representative to the United Nations, Daniel Patrick Moynihan, fumed that “the United States rises to declare before the General Assembly of the United Nations and before the world that it does not acknowledge, it will not abide by, it will never acquiesce in this infamous act.”  

The result of this resolution was that “Zionists” were blacklisted and banned from speaking at several colleges and universities that had “anti-racist” speaking policies.  Not a great victory for “human rights” or for freedom.  In a world, where genocide, slavery, disappearances, torture, systematic rape, murder of dissidents and other grave violations of human rights were being routinely perpetrated by its member nations, Zionism and Israel became the number one enemy of the U.N., with more resolutions condemning Israel than all the other member nations combined.  

The Zionism-Racism resolution was followed by a deluge of anti-Israel sentiment in the General Assembly, the Security Council, and the UN Council on Human Rights.  At the 1978 session, “several speakers drew a parallel between Zionism and apartheid,” insisting that “those selective and racist regimes should be outlawed by the international community.”  In 1979, after the Cambodian genocide was already completed but before any major UN body condemned the genocide, there were more comparisons between Zionism and apartheid, with some delegates drawing a parallel “between Nazi policies against the Jews and Israeli brutalities against the people of Palestine.”

When the General Assembly itself finally addressed the Cambodian genocide in a resolution, it did so in tepid terms compared to its treatment of Israel.  The General Assembly simply noted “with great concern that the armed conflict in Kampuchea [Cambodia] and is seriously threatening the peace and stability of South-East Asia.”  In contrast, a resolution passed that same year “deplores the continued and persistent violation by Israel of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and other applicable international instruments, and condemns in particular those violations which that Convention designates as ‘grave breaches’ thereof.”  

True to form, Chomsky related Cambodia to Israel, inverting the actual seriousness of the human rights violations and asserting that “condemnation of Cambodian atrocities, covering the full spectrum with the exception of some Maoist groups, had reached a level and scale that has rarely been matched, whereas the situation of the Arabs under Israeli occupation (or indeed, in Israel itself) is virtually a taboo topic in the United States.”  


The Zionism-racism resolution was ultimately rescinded in 1991 by a vote of the General Assembly, but it continued to animate U.N. actions, especially by the “Human Rights Council” of the U.N. (previously known as the UN Commission on Human Rights), which in 2001 convened the first of several “Durban Conferences” against “racism, racial discrimination, xenophobia and related intolerance.”  Its primary, if not exclusive, focus was on Israel.  It virtually ignored racial genocides, slavery and other obvious manifestations of racism and discrimination.  The final preparatory session was held in Tehran.  All Israelis and all Jewish NGO’s were excluded.

According to Irwin Cotler, the former Attorney General of Canada, who attended the conference, the air was filled with hate speech such as “too bad the Holocaust was not completed.”  The conference became a “festival of hate such that we had not experienced anywhere at any time before.”   It was “a state sanctioned culture of hate” which, to Cotler, “is the most dangerous form of anti-Semitism that we are witnessing in the 21st Century.”  And all of this was done under the Aegis of the U.N.!  Even the U.N. High Commissioner for human rights—Mary Robinson, no friend of Israel—was appalled at what she was witnessing.  The Arab Lawyers’ Union distributed a booklet of anti-Semitic cartoons that could have been published by Der Sturmer.  The Jerusalem Post reported Robinson’s reaction:  

“Waving a book of anti-Semitic cartoons distributed at the anti-racism conference in Durban, UN High Commissioner Mary Robinson - in a dramatic act of identification with the Jews vilified in the pamphlet - declared "I am a Jew" at an NGO dinner there Wednesday night.”

The late Congressman Tom Lantos from California observed:  

“whenever the word ‘Holocaust’ was read during the plenary review of the combined text, one of the Islamic delegates—usually Egypt—intervened to change ‘Holocaust’ to ‘holocausts.’  Adding insult to injury, the same delegates requested that the phrase ‘and the ethnic cleansing of the Arab population in historic Palestine’ be inserted after the appearance of ‘holocausts.’

Each time…language on anti-Semitism and the need to combat it was raised in the plenary, the OIC states intervened to couple anti-Semitism with the phrase ‘racist practices of Zionism,’ or even more outlandish ‘Zionist practices against Semitism”—a deliberate move to confuse the real meaning of anti-Semitism.