I told Bennett that I strongly believed he had made a mistake by walking his client into a perjury trap and allowing him to get into a swearing contest about his sex life.  He assured me that he knew what he was doing and that it would all work to the advantage of his client.  I told him I hoped he was right, but that I still thought he had made a mistake.

A lawyer owes his client the duty to explain all available legal options, even if he believes that the client will probably reject a given option.  Bennett failed in this duty.  He now argues, in his own defense, that if Clinton had defaulted the Jones case, many more litigants would “come out of the woodwork” and sued Clinton in the hope that he would default.  This is a fallacious argument for several reasons.  First, the statute of limitations would have passed on virtually all allegations arising – as the Jones case did – before Clinton became President.  Even more importantly, the moment it became public – which it quickly did – that the President previously had offered a $700,000 settlement to Jones, there was more than enough incentive for gold-diggers to come forward and sue.  If Clinton was prepared to pay $700,000 to settle a suit he regarded as utterly frivolous and untrue, no greater incentive would have been added if he defaulted and paid.

The sad reality is that Robert Bennett, perhaps in his zeal to chalk up a high visibility win, failed or neglected to tell the president that this was one case that was better for the client to lose and avoid testifying rather than to win and risk testifying falsely.  

Defaulting the Jones case would have resulted in bad headlines the next day—and perhaps for an additional week.  But testifying about his sex life resulted in  a dangerous threat to the Clinton presidency – a threat which would not materialize for several months.  Thus we see another instance of the President making a decision which helped him in the short run – by avoiding the negative headlines of a settlement or default – but hurt him greatly in the long run.  It was a pattern that would persist.

On January 26, 1998, President Clinton, with the assistance of Hollywood producer Harry Thomason , decided to make a public statement denying a sexual relationship with Monica Lewinsky.  Pointing his finger at the TV camera for emphasis, he said: 
          “I want you to listen to me. I’m going to say this again. I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time – never. These allegations are false. And I need to go back to work for the American People.”

This statement, made directly to the American public and not under oath, has come back to haunt Clinton. Why did he make it? He was under no legal obligation to make any statement. He could easily have said, as so many others have said, “Since the matter is now the subject of a legal proceeding, my lawyers have advised me to make no public comment about it. I’m sure you understand.”

But instead, he issued a firm denial of what he would later have to admit was essentially true: namely that he did, in fact, have some kind of a sexual encounter with “that woman.”

Once again, the President and his advisors opted for the quick fix. They felt that it was  necessary to put out the political brushfire that was burning around them. By issuing a firm denial, the President could postpone – perhaps forever – the longer term consequences of his improper sex and his misleading testimony.  At the time he made the statement, the President may not have been aware that Lewinsky had saved the semen-stained dress that would eventually force him to change his story. Without the dress, it would always be a “she-said, he-said” conflict between the President of the United States and a woman who acknowledges on the Tripp tapes that she frequently lies, and whose own lawyer said is an impressionable woman who sometimes fantasizes.

On July 28, 1998, Monica Lewinsky’s lawyers struck a deal with Starr under which she was given total immunity in exchange for her cooperation and testimony.  On July 29, 1998,  the President’s lawyer announced that an agreement had been reached with the Independent Counsel regarding the President’s subpoenaed  grand jury testimony.  The subpoena would be withdrawn, the President would submit voluntarily to four hours of questioning in the White House, in the presence of his own lawyers. In reaching this agreement, the President withdrew his constitutional challenge to the power of a grand jury to compel his testimony. This was a serious constitutional issue, especially since Starr had given Lewinsky total immunity from prosecution.  This left Clinton as the primary target of the grand jury. But there is grave doubt whether a sitting President can be indicted or prosecuted. If he cannot, then there is even graver doubt whether it is proper to use a grand jury to gather information for an impeachment. In my view, the President could have leveled a serious challenge, on this and other grounds, against the grand jury subpoena. Such a challenge would have taken at least a year to resolve. In the meantime, he would not have had to testify. 

But the President decided to waive this challenge and to testify “voluntarily.”  What I don’t know is whether at the time the President made the decision to testify he knew of the existence of the semen-stained dress. There had, of course, been rumors of such a dress over the prior months, but they had been denied by Lewinsky’s lawyer.  The news of the uncleaned dress with a telltale stain became public only after the President made his decision to testify. It is fair to ask whether the President’s decision would have been different if he knew about the existence of the dress.  It is also fair to ask whether the President’s testimony in front of the grand jury would have been different had there been no dress.  We don’t know.

What we do know is that the President’s decision to testify before the Starr grand jury gave the prosecutor an opportunity to trap the President once again into committing perjury – this time not in a live deposition in a dismissed case where the testimony was only marginally relevant, but in a grand jury proceeding where the testimony was central.

It also gave the prosecutor an unprecedented opportunity to videotape the interrogation so that it could be seen by Congress and the public. 

Again short term considerations prevailed.  First, the President’s political advisors urged him to avoid that day’s image of the President walking into the courthouse – the so-called “perp walk.”  The White House agreed therefore, to the making of a videotape which would later show the President being evasive and perhaps even dishonest.  Although the President’s videotaped testimony was not as bad as many thought it would be – at least in the short run -- it was more damaging in the long run than a walk to the courtroom might have been.

Ultimately, after the disclosure of the semen-stained dress made it undeniable that there had been sexual activity between them, President Clinton had to appear on television and acknowledge that he had behaved “inappropriately” with Monica Lewinsky.  It was a low point both in his presidency and in his personal life.

The day after President Clinton publicly acknowledged that he had behaved “inappropriately”, he flew to the Vineyard.  The next day, we were both at a party.  The President gathered a small group—including several lawyers—around him and began to discuss the case.  He said that following the unanimous Supreme Court decision refusing to postpone the lawsuit brought against him by Paula Jones, he had no choice but to submit to a deposition about his sex life, because Jones refused to settle the case.  I told him he did have an alternative:  he could have ended the law suit by simply defaulting and paying Paula Jones’ damages.  If he paid the damages she sought to the court, the case would be dismissed, regardless of whether or not Paula Jones agreed.  If the lawsuit were dismissed, there would be no depositions.  I told the president that he could have justified his decision to pay off the suit by explaining that the American presidency is more than a full time job and that he had no time for depositions—the preparation for which are extremely time consuming—even if the Supreme Court justices (who work relatively short hours) thought he did.

The President looked surprised:  “Nobody ever told me I could have had the case dismissed if I had paid the money.  [My lawyer] told me I had to be deposed.”

Shortly thereafter, Bob Bennett was no longer representing President Clinton, and Clinton was seeking my legal advice, as his problems—all of which derived from the deposition he didn’t have to give—multiplied.  He came close to being indicted.  He was impeached (and eventually acquitted by an evenly divided Senate vote), and disbarred.    

During the course of these proceedings I conferred with the President, provided legal memoranda to him and his lawyers, and discussed his case in the court of public opinion. 

I also testified on the President’s behalf as an expert witness on the law of perjury before the congressional committee that was considering whether to impeach Clinton for the “high crime” of perjury.  The chairman of the committee was Republican Congressman Henry Hyde, with whom I repeatedly clashed.  The front page of the Washington Post featured a large photograph the next morning of the two of us angrily pointing accusatory fingers at each other.  [get this photo]

The source of our conflict was over the selective outrage directed by Congressman Hyde and other Republican lawmakers at President Clinton’s alleged perjury.  I began my testimony by putting President Clinton’s false statements into a broader historian context:


     For nearly a quarter of a century I have been teaching, lecturing and writing about the corrosive influences of perjury on our legal system -- especially when committed by those whose job it is to enforce the law, and ignored or even legitimated by those whose responsibility it is to check those who enforce the law.

     On the basis of my academic and professional experience, I believe that no felony is committed more frequently in this country than perjury and false statement crimes. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that, quote, "experienced lawyers say that in large cities scarcely a trial occurs in which some witness does not lie." Police perjury in criminal cases, particularly in the context of searches and other Exclusionary Rule issues, is so pervasive that the former police chief of San Jose and Kansas City has estimated that hundreds of thousands of law enforcement officials commit felony perjury every year testifying about drug arrests alone.  But in comparison with their frequency, perjury crimes are among the most underprosecuted in this country.  


I then distinguished among various types of perjury.


     Historically I think we can all agree that false statements have considerable variation and degree. The core concept of perjury grows out of the Ten Commandments, "bearing false witness," a term that consisted in accusing another falsely of a crime. Clearly the most heinous brand of lying is the giving of false testimony that results in the imprisonment of somebody who is innocent. Less egregious, but still quite serious, is false testimony that results in the conviction of a person who may be guilty, but whose rights were violated in a manner that would preclude conviction if the police testified truthfully….The least culpable genre of false testimony are those that deny embarrassing personal conduct of marginal relevance to the matter at issue in the legal proceeding.


I then tried to place Clinton’s false statements in their proper place along this continuum.


     I think it is clear that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses, and would never even be considered for prosecution in the routine cases involving an ordinary defendant.


I then blasted the Committee for having never conducted hearings on the corrosive problems never conducted hearings on the corrosive problem of police perjury—“testilying.”  


     If we really want to reduce the corrosive effect of perjury on our legal system, the place to begin is at or near the top of the perjury hierarchy. If instead we continue deliberately to blind ourselves to pervasive police perjury and other equally dangerous forms of lying under oath, and focus on a politically charged tangential lie in the lowest category of possible perjury, hiding embarrassing facts by evasive answers to poorly framed question, which were marginally relevant to a dismissible case, we will be reaffirming the dangerous and hypocritical message that perjury will continue to be selectively prosecuted, as a crime reserved for political or other agenda-driven purposes.



I then warned that:


     [H]istory will not be kind to this committee. History will not be kind to this Congress. I think this committee and this Congress will go down in history along with the Congress that improperly impeached Andrew Johnson for political reasons.


Following my testimony, Chief Judge Gerald B. Tjoflat, of the United States Court of Appeals for the 11th Circuit, was asked to comment about the different types of perjury I had discussed.  He replied that “perjury is the same, regardless of the circumstances.”  I then responded to Judge Tjoflat’s view:


     I think this committee is doing a terrible disservice to the rule of law and to the sanctity of the oath by trivializing the differences, as Judge Tjoflat said in one of the most unbelievably wrong-headed statements I have ever heard from a judge, that there is no difference between types of perjury.

     I challenge anybody to say that there is no difference between a police officer who deliberately frames an innocent man or woman who he knows is [innocent] and subjects that person to false imprisonment or the electric chair, and someone who lies to cover up a private, embarrassing sex act.



Congressmen Hyde and Conyers replied:


     REP. HYDE: I thank you, Professor Dershowitz. I don't thank you for criticizing the motives, saying that we're out to get the president. You haven't the slightest idea of the agony that many of us go through over this question.

     [W]e are concerned about the double standard. That may mean nothing to you --


     MR. DERSHOWITZ: It means a great deal to me.


     REP. HYDE: -- but it means something to us.


     REP. CONYERS: Mr. Chairman?


     MR. DERSHOWITZ: It means a great deal to me. (Applause.) [W]hen is the last time this committee has expressed concern about the rights of criminal defendants -- (a chorus of "regular order" from committee members)… It's a sham.


     REP. CONYERS: Mr. Chairman?


     REP. HYDE: Yes, Mr. Conyers.


     REP. CONYERS: And I thank you for this interchange. [W]e are split totally down the middle in the most partisan fashion that has ever happened. 


     The result is fairly obvious of what's going to happen to anybody with the least understanding of this matter. So for you to be offended by the Dershowitz evaluation strikes me as a little disingenuous. You know what we're going to do here because it's been said repeatedly by every Republican member of the committee! So let's not get offended by the truth at this point in our proceedings.



Congressman Hyde then angrily began to lecture me about the rule of law:


     Does the rule of law -- have you been to Auschwitz? Do you see what happens when the rule of law doesn't prevail?

     Now, I don't leap from the Oval Office on a Saturday afternoon to Auschwitz, but there are similarities when the rule of law doesn't obtain, or where you have one law for the powerful and one for the nonaristocratic.

He did not give me an opportunity to respond to his absurd invocation of Auschwitz.  But I did insist on responding when Congressman Barr contrasted me with the “real America” and how “the real America views these matters.”  The following heated exchange then took place:



     MR. DERSHOWITZ: Can I respond, 30 seconds, to what I perceive to have been a personal attack? First of all, whenever I hear the word "real Americans," that sounds to me like a codeword for racism -- a code word for bigotry, a codeword --

     REP. BARR: That's absurd, professor, you ought to be ashamed. That is the silliest thing I have ever heard --


     MR. DERSHOWITZ: When I hear you describe me as something other than a real American -- shame on you. We may have a disagreement about the merits of these issues, but I would no more impugn your Americanism than you should impugn mine, sir.


     REP. BARR: You're being silly, professor. You are being absolutely silly.


     MR. HIGGINBOTHAM: May I respond, Mr. Chairman?


     REP. HYDE: Yes, indeed -- far be it from me to not have anyone respond. Go right ahead.


     MR. HIGGINBOTHAM: I take profound disagreement with Congressman Barr's categorization of the "real America," which he apparently understands with such fine discernment, and those of us who teach at universities are oblivious. You know we have students, and they teach us something. And my father was a laborer. My mother was a domestic. And I climbed up the ladder, and I did not come to where I am through some magical wand. So t hat I am willing to match you any hour any day in terms of the perception of the "real American."

Not all the Congressmen were angered by my aggressive testimony.  This is how Congressman Rogan summarized his views:


     I guess, in fairness, Professor Dershowitz, I have to single you out just for one moment, because I want to assure you that you and I have no hard feelings between ourselves. I know that you raised a few hackles here with some of my colleagues with controversial comments, but I want you to know I personally found them to be very therapeutic, because up till now the only excuse I had for not having attended Harvard Law School was my grade-point average. (Laughter.) So you've given me a little different perspective.

Following my testimony, I worked closely with the president’s legal team both on the impeachment and on the Starr investigation.  One summer day, during the impeachment crisis, the White House switchboard tried unsuccessfully to reach me.  (The White House has an unparalleled capacity to reach people.  Once when flying on a commercial flight, the pilot came out and whispered in my ear, “the President is on the radio-phone.  I took the call in the cockpit.) I was on a beach, which had no cell phone service.  When I got back to my house, there were seven frantic messages that the President needed to see me right away. He was staying a couple of miles away from our house, at the home of Dick Friedman in Edgartown.  I jumped into my old Volvo and drove straight to Friedman’s house.  The Secret Service man at the end of the road waved me through, telling me that the President was expecting me.  But I was then stopped by another Secret Service man, telling me that the rules required that they search under the hood, so I would have to lift it up.  I started looking for the mechanism to open the hood.  After a few minutes, the Secret Service man smiled and said, “Professor you don’t know how to open up the hood on your own car, do you?”  I responded sheepishly, “I’m not sure.”  I then asked him if he had heard of the comedian Jackie Mason?  He said yes.  I said, “Jackie Mason tells a joke about how when a non-Jew hears knocking under the hood of his car, it makes his day.  He gets in there and he fixes and fixes.  But when a Jew hears knocking under the hood of his car, he immediately trades it in for a new one.”  He laughed, and showed me where the lever was.  I then drove down the road a short distance where the President was waiting for me in his jogging shorts.  He had already heard that I didn’t know how to open up the hood of my own car and laughingly wondered whether he should be seeking advice from such a klutz.

During the height of the Lewinsky affair, I found myself sitting right next to the President at a large dinner party.  He asked me what I was working on and I told him I was finishing a book called the Genesis of Justice about the first book of the Bible.  Clinton is incredibly knowledgeable about the Bible and we spent much of the dinner in intense conversation about the various Biblical stories in the Book of Genesis.  The next day I received a call from Gail Sheehy [check this] of Vanity Fair saying that she had heard from somebody at another table at this party that the President spent the entire dinner grilling me about whether oral sex constituted adultery within the Biblical meaning of that term.  I told her, truthfully, that the subject of adultery and oral sex had simply never come up during our discussion.  We had talked about Abraham and Jacob and Joseph.  I gave her the names of other people at our table—including Anthony Lewis of The New York Times—and suggested she check with them if she didn’t believe me.  She said, “Damn, that was such a good story but I guess I can’t use it.”  I said, “Of course you can’t use it, it didn’t happen.”  When the article appeared in Vanity Fair, she included the story, knowing that it was false.  I wrote a letter to the editor telling what happened and she replied that although I had denied the truth of the story, somebody at another table confirmed that it was true.  Of course the person at the other table couldn’t possibly hear our conversation but he probably heard some words suggesting that we were talking about the Bible, and simply assumed that it must have been about adultery.  So much for journalistic integrity.

Shortly after the Clinton case was resolved, John Kennedy, Jr.—the late son of the former President—called and asked me if I would contribute an article to his magazine, George.  He asked me if I would describe the ten greatest legal blunders of the 20th Century.  Here is what I described as the number 1 and 2 greatest blunders:  

     By far the greatest legal blunder of the 20th Century was committed by President Clinton’s lawyer in the Paula Jones case, Robert Bennett.  Bennett allowed his client to be questioned under oath in a deposition about the details of his sex life and to deny that he had sexual relations with Monica Lewinsky.  This sworn denial became the basis for an impeachment investigation and opened the way for the President to have to testify in front of a grand jury. The Paula Jones case should have been settled immediately after the President’s reelection in 1996.  If Paula Jones’ lawyers refused to settle the case, Bennett could have advised the President simply to default – that is to pay the money and refuse to contest the charges.  Bennett never even told Clinton about this option.  

     The second greatest blunder, believe it or not, was also committed by Bennett. After walking his client into the perjury trap, Bennett himself helped to spring it. Not content to let the President answer the opposing lawyers’ questions, Bennett did the unthinkable: he asked the President to affirm, under oath, the truth of Monica Lewinsky’s affidavit without having asked Lewinsky what she meant when she said she had not engaged in sexual relations with Clinton. Then, Bennett mischaracterized the affidavit by saying that the affidavit indicated that “there is absolutely no sex of any kind in any manner, shape or form.” Finally, in a “cover your ass” letter to the court, Bennett implicitly blamed his client for misleading the court, instead of forthrightly acknowledging his own failure to find out what Lewinsky meant by sexual relations. These blunders give Bennett almost unique bragging rights as the only lawyer in American history who has helped his client get impeached.
At the very beginning of the Lewinsky matter, I had received a call from someone close to the White House giving me the phone number where Monica was staying and urging me to call her.  I perceived a possible conflict of interest, and didn’t make the call.  Several years later, I was approached by Monica’s mother at a Jewish event.  She said, “I wish you had called Monica.”  I have often wondered whether the case would have turned out differently if I had called and agreed to represent her.  

Although I helped defend Clinton before Congress and in the court of public opinion, I was critical of his sexual misconduct while in office.  In my book Sexual McCarthyism, I argue:  

     “At bottom this is a story of how two men who are obsessed about forbidden sex—Clinton about engaging in it and Starr about exposing it—managed to turn a tawdry series of Oval Office sexual encounters into a constitutional crisis.  Clinton and his advisers made mistake after mistake in a futile effort to keep his embarrassing little secret from becoming public.  Starr and his staff overreached, overreacted, exaggerated and pressed every issue to the limits of its logic to expose the secret and embarrass the President.  The result was a highly unlikely combination of factors that led the nation to where almost no one wanted to go—to the brink of a constitutional crisis with international implications.

     Some critics believe that Bill Clinton and Kenneth Starr deserve each other.  But we the people do not deserve to see our delicate system of checks and balances endangered by the reckless actions of two obsessed men.”

Remarkably, I have remained on friendly terms with both Clinton and Starr after writing these harsh words.  Most celebrities I have encountered have extremely thin skins.  They never forgive even small slights because they are accustomed to being universally adored.  Both Clinton and Starr have thick skin.  They accept criticism, especially when they know it is well intentioned. The same cannot be said about the next celebrity (and his lawyers) in whose case I played a major role.  



Woody Allen vs. Mia Farrow

In my article on the 10 greatest legal blunders of the 20th Century, I included on my list, the decision by Woody Allen’s lawyers to sue Mia Farrow for custody of several of her adopted children as well as the one child they conceived together.  I played an unusual role in that lawsuit, in which both sides were focused heavily on the media: Woody was concerned that negative coverage, particularly of allegations involving sexual improprieties with a young girl, might ruin his career; and Mia’s concern that any coverage might hurt her children.  Every legal maneuver in the case was made with an eye (sometimes two) on the media.

I first met Woody Allen when he was filming Manhattan.  He was given to me as a birthday present by a group of friends, one of whom knew Woody from his earlier film “The Front.”  [check dates]  He agreed to meet me for lunch.  He didn’t know he was my birthday present.  When I told him, he immediately began to speculate as to who he would want as a present:  “Louis Armstrong,” he said would be his first choice.  

“He’s dead,” I reminded him.

“Exactly,” he replied.

“Jimmy Hoffa would be my second choice.”

“He’s missing,” I said.  

“Exactly,” he repeated.

He then asked me which dead person I would have wanted to represent as a criminal lawyer.  I immediately replied “Jesus.”  

“Do you think you could have won?” he asked.

“In front of a Jewish jury, maybe.”

“Those biblical Jews were tough.  They didn’t tolerate troublemakers like Jesus.  They probably wouldn’t have liked Jews like us from Brooklyn,” Woody mused.

“Yeah, but imagine how different history would be if a Jewish lawyer saved Jesus.  They couldn’t accuse us of killing their Lord.”

“But he wouldn’t have been their Lord, if you had won. He wouldn’t have been crucified.  And without crucifixion, there’s no Christianity, so if you had won they’d be blaming the Jews for destroying Christianity.”

Woody reminded me of the riff that got Lenny Bruce into so much trouble.  Bruce quipped that if the Roman’s electrocuted rather than crucified their enemies, millions of Christians would be walking around wearing tiny electric chairs around their necks.

We then discussed “The Front” and I told him that my father knew Zero Mosel—the star of the film—whose relative had a store on the lower east side near my father’s.  We discussed “blacklisting,” “McCarthyism” and other subjects in which we shared a common interest.  It was a great birthday present.

Several years later Woody and his then girlfriend, Mia Farrow, came to hear me speak in New York about the Rosenberg trial.  I had written a positive book review for The New York Times about a book which had concluded that Julius Rosenberg had indeed been a Soviet spy.  This is how I began my review:

     WERE Julius and Ethel Rosenberg guilty of transmitting American atomic secrets to the Soviet Union in the 1940's, or were they scapegoats of the cold war whose execution was a grave miscarriage of justice? That both are true is the intriguing argument of [the new book.] 

Woody and Mia both insisted that the Rosenberg’s were innocent and I promised to send them the evidence that Julius was a spy and Ethel a collaborator if not a conspirator.

Over the next several years I saw Woody and Mia on a few occasions.  Mia called me a few times to discuss political issues and Woody and I wrote to each other.  

Then everything changed.  Early one morning, Mia called.  We exchanged pleasantries and I asked her how Woody was.  “He’s abusing my children,” she said.  I replied, “Don’t even joke about that, it’s not funny.”  She said, “no, really.  He’s been sleeping with one of my daughters and acting inappropriately with another one.”  I again asked her if she was serious, since the allegations seemed so out of character.  She told me she was dead serious and asked if I could drive down to her house in Connecticut and meet with her.  I told her I would, and that I would bring my wife, who is a PhD psychologist with extensive experience in such matters.  

We drove to Connecticut and Mia greeted us.  She was fixing a leaky roof while trying to take care of her numerous children, including a blind girl and a crack baby, who she had adopted.  She told me that Woody had started an affair with her adopted Korean daughter, Soon-Yi.  I asked her how old Soon-Yi was and she told me nobody knew for sure because she was adopted when she was a baby and she could be anywhere from 17 to 19.  She then told me that Woody had been seen by one of the nannies touching her ____ year old daughter, Dylan, in an inappropriate way.  She also told me that Dylan had told her that Woody had taken her up to an attic crawl space where he had also touched her inappropriately.  She showed me the crawl space.  She also showed me naked Polaroids that Woody had taken of Soon Yi, that she had found in Woody’s apartment, along I with a naked photo of Dylan.  My wife Carolyn then had a conversation with Dylan about her relationship with Woody.

I was shocked beyond belief and asked how I could help.  Here was yet another example of a celebrity putting his own desire for immediate gratification above the needs of his long time lover and her family.  Even if only the allegations regarding Mia’s adopted daughter, Soon Yi, were true, Woody’s actions would demonstrate extreme insensitivity to Mia Farrow’s family.  Here is how the appellate court ultimately characterized Woody’s behavior.

     “In January of 1992, Mr. Allen took the photographs of Ms. Previn [Soon Yi] which were discovered on the mantelpiece in his apartment by Ms. Farrow and were introduced into evidence...Mr. Allen in his trial testimony stated that he took the photos at Ms. Previn's suggestion and that he considered them erotic and not pornographic. We have viewed the photographs and do not share Mr. Allen's characterization of them. We find the fact that Mr. Allen took them at a time when he was formally assuming a legal responsibility for two of Ms. Previn's siblings to be totally unacceptable. The distinction Mr. Allen makes between Ms. Farrow's other children and Dylan, Satchel and Moses is lost on this Court. The children themselves do not draw the same distinction that Mr. Allen does. This is sadly demonstrated by the profound effect his relationship with Ms. Previn has had on the entire family. Allen's testimony that the photographs of Ms. Previn “... were taken, as I said before, between two consenting adults wanting to do this ...” demonstrates a chosen ignorance of his and Ms. Previn's relationships to Ms. Farrow, his three children and Ms. Previn's other siblings. His continuation of the relationship, viewed in the best possible light, shows a distinct absence of judgment. It demonstrates to this Court Mr. Allen's tendency to place inappropriate emphasis on his own wants and needs and to minimize and even ignore those of his children. At the very minimum, it demonstrates an absence of any parenting skills.”  


Mia asked me to call Woody and tell him to stop doing what he was doing.  She told me that Woody admired me and that he kept a copy of my book Chutzpah on his bed table.  

I asked Mia to have Woody call me but he apparently refused so I decided to write him a letter, which I asked his lawyer to give him.  In the letter, I urged Woody to try to resolve the matter privately: 

     “I still believe that matter can be resolved without even more escalation and damage to all parties.  As you and Mia both know, I am a great admirer of your work, and I do not want to see your career and your life destroyed.  Right now you are on that road and something must be done to head it off, not only for your sake, but for the sake of the children and for Mia.”

I don’t know whether he ever got the letter.  I received no reply.  Mia then asked me to contact his lawyers and see if the matter could be resolved without any public disclosure.  I said I would try.  I called his lawyers and they agreed to a meeting in New York.  I brought with me to the meeting a law school classmate, David Levett, who was a leading lawyer in Connecticut and was knowledgeable about the Connecticut law relating to such issues.  Our goal, and Mia’s, was to bring about some resolution of this troubling matter without any publicity, which she felt would be harmful to her children.  

In the middle of the meeting, we received notice that Woody’s lawyers, the very ones we were discreetly negotiating with, had publicly filed a lawsuit against Mia, and that Woody was about to hold a press conference in which he was going to accuse Mia of making up stories about him.  

I was shocked at this duplicity.  I’m not used to dealing with lawyers who mislead their opponents in this way.  

Woody Allen’s suit was seeking custody of several of the children Mia had originally adopted, as well as the one biological child they had conceived together.  IT was an extraordinarily stupid move on the part of Allen’s lawyers, because at the time he filed the custody suit, Woody Allen barely knew the children and their siblings, had no idea who their friends were, did not know the names of their pediatricians and had virtually nothing to do with their upbringing.  Mia Farrow, on the other hand, was a hands-on mother who was deeply involved in every aspect of her children’s lives.  

At the trial, Woody’s lawyers pulled off an even more bone-headed maneuver.  They claimed that Levett and I, by seeking to resolve the matter quietly, were “blackmailing” Woody into settling the case favorably to Mia.  This was a ridiculous claim, as the judge found.  Courtroom observers could not believe that Woody’s lawyers would force me to appear as a witness, knowing that I would surely side with Mia in her efforts to maintain custody over her children.  But having been falsely accused of trying to blackmail Woody, I had no choice but to testify as to precisely what had transpired.  No one could understand why Woody’s lawyers had decided on a tactic that would make me a witness.  But I knew something they didn’t know, which led me to conclude that they put me in this position not out of a desire to help Woody, since there was no way my testimony could in any way support his claim.  They accused me of blackmail in an effort to hurt me.  That, at least, was my assessment, based on what I knew.    

Why would they want to hurt me rather than help their own client?  Because the senior partner of the law firm representing Woody, a former prosecutor named Robert Morvillo, was seeking revenge against me for my having prevented him from becoming the United States Attorney for the Eastern District of New York.  That was his dream job and he was about to get it when I exposed his prosecutorial misconduct in a case I was litigating.  He had essentially bribed a key government witness with money that was owed to the creditors of a bankrupt corporation.  He had arranged for the witness to obtain the bankrupt funds which he knew had been secreted in a Caribbean account.  In doing so, Morvillo had committed two serious crimes:  bribing a witness and facilitating the stealing bankrupt funds.  The federal district judge who presided over the case wrote a scathing opinion condemning Morvillo’s actions.  That opinion appeared as a front page story in the Village Voice, thus scuttling any chance Morvillo had of receiving a federal appointment.  Morvillo was so angry that he told the Village Voice that if he ever saw me again, he would “deck” me.  He never had a chance to throw a punch at me, and so he decided, in my opinion, to use this lawsuit as a way to deck me.  I’ll bet that he never told Woody Allen of his hidden agenda.   

As any decent lawyer would expect, the ploy backfired.  My letter to Woody, coupled with the testimony of other lawyers who were involved in the negotiations, proved that my interest was in protecting the children not in blackmailing Woody.  I testified that I was seeking: 

          “to have a preliminary discussion which might eventuate in saving the children from the kind of atmosphere that they have tragically been placed in as a result of Woody Allen’s lawyers.

          Q:	And not as a result of Miss Farrow’s lawyers.

          A:	Absolutely not.

          Q:	In any respect?

A:	If Mr. Allen had listened to Miss Farrow’s lawyers, we would not be in court today and the children’s best interest would have been served.
I was then asked about my efforts to have Woody call me or respond to my letter:  

          Q:	Now lastly, Mr. Dershowitz, did you ever instruct—prior to August 13, did you ever instruct Miss Farrow to tell Mr. Allen that he should talk to you because this is a criminal act and I needed a criminal lawyer?...


A:	Was I trying to get hired by Woody Allen to be his criminal lawyer?  No…My recollection is that Miss Farrow called me and asked me if I would speak to Woody Allen.  I said I felt uncomfortable calling Woody Allen.

               I have to tell you I wish I had.  I wish I had a chance to talk to him
               directly.  I wish I had had a chance to do something to stop this
               steamroller that occurred, and I wanted very much to talk to him.  I thought he was getting terrible advice from his lawyers.  I tried to write him a letter.  I don’t know if he ever read the letter.

               I think that bad advice has contributed to this and now the lawyers are trying to figure out a scapegoat for this and they are pointing a finger in the wrong direction.

Q:	You think you are the scapegoat for this?

A:	I think the reason you’ve had me on the witness stand for as long as you’ve had me on the witness stand as a result of 15 or 20 minutes direct testimony for a meeting that I played a facilitative role shows that there is an agenda here a little bit different than the agenda that you’re presenting in the court, yes, I do.

The court would not permit me to expand on the nature of this hidden agenda, but the damage to
Woody’s case had been done.  My testimony, in sum, was very supportive of Mia’s efforts to
retain custody of her children and highly critical of Woody’s attempt to portray her in a negative light.

The judge credited my testimony and ruled against Woody Allen in every respect, denying him not only the custody of the children, but even the right to see his own biological son without severe restrictions.  As far as I know, Woody Allen never did see his biological son, who has grown into quite an adult, having won a Rhodes Scholarship for his extraordinary work on human rights.  To this day, I doubt that Woody Allen knows how Robert Morvillo tried to use his case to settle a score with me.  

Shortly after it was publicly announced that I would be helping to defend Mia Farro against the lawsuit brought by Woody Allen, my phone rang.  The voice on the other end said, “Hey Alan, this is Frank.”  

I asked, “Frank who?”  

The voice on the other end sounded surprised by the question and immediately responded, “Frank Sinatra.”  

Sinatra had previously called me when Kitty Kelly’s notorious biography was about to be published.  He asked if I was interested in representing him in a lawsuit against Kelly for defamation.  I described to him what effect the lawsuit would have on the quality of his life and told him that I thought it would be a bad idea to bring one and that I would not be willing to represent him in such a matter.  He apparently agreed and didn’t bring the suit.  [check]

“Nice to talk to you Mr. Sinatra,” I responded to his latest call.  He immediately got down to business.  “I love Mia.  We were married, you know.  She’s a great girl.  Woody’s trying to bully her.  He can’t be allowed to get away with that.  What can I do to help?”  

I told Mr. Sinatra that I appreciated the call but that the legal case was under control.  

He quickly responded, “Well beyond the legal case, what can I do to call Woody off?”  

Aware of Sinatra’s reputation as a tough guy, I nervously told him to leave it to the lawyers and that any approach to Woody Allen would be used against Mia and would backfire.  

Several months later, during the summer, Andre Previn—another of Mia’s former husbands—was performing in the Whaling Church on Martha’s Vineyard.  My wife and I attended his concert and then went to a reception that followed.  Previn, like Sinatra, told me how much he loved Mia and that she was a great person.  

He continued, “I feel like marching up to his apartment, knocking on the door, and punching him in the face, telling him to leave Mia alone.”  

Recalling the Sinatra call, I let out an uncontrollable laugh.  Previn asked, “what’s so funny?”  

I responded, “If I wanted any of Mia’s former husbands to put the fear of God in Woody Allen, I’d pick Sinatra over you Mr. Previn.”  He laughed in agreement.

I have maintained a good relationship with Mia.  Woody Allen eventually married Soon-Yi, and they have adopted children.  Their marriage seems to be working.  

Both the Clinton-Lewinsky impeachment and Woody Allen-Mia Farrow cases involved sordid accusation of improper sexual conduct by famous and powerful men.  These kinds of accusation directed against these kinds of men are grist for the media mill.  Every legal and political move is covered in detail.  Everyone has an opinion.  Litigating in such an environment is perilous.  Every mistake is magnified.  You don’t learn how to manage such cases in law school.  There are no rule books.  Experience is the only teacher.

After years of experience in dozens of high profile cases, I now try to teach my students how to avoid, really minimize, inevitable mistakes.  Here are some of my everchanging rules:

       1.  Never take a case just because the client is a celebrity or because the case is “high profile.”  Make sure the issues in the case are within your area of expertise.

       2.  If you do take the case, don’t “hang out,” “chill” or socialize with the celebrity.  (It is ok to get an autograph for your kid, but that’s all.)  Never assume the celebrity, or high profile client, is your friend.  You have an entirely professional relationship.  Charge your usual fee.  No discount, no gauging.

       3.  Never say anything about the client or the case to anyone unless you are prepared to see it in The New York Times or The National Enquirer.  

       4.  Every time you meet the client, be prepared to be fired for telling him or her what they don’t want to hear.  Famous people often get bad medical treatment and bad legal service for the same reason:  the doctor and lawyer don’t want to offend or upset them and care more about keeping the patient or client than telling them the painful truth.

       5.  Don’t pretend your celebrity or high profile case is just like an ordinary case.  The media is watching your every move, and every move should take into account the anticipated media coverage.  This doesn’t mean you should make or refrain from making the right move because of the anticipated coverage, but rather you should consider (and perhaps reject, but at least consider) what is the right move.   

       6.  Remember that judges, jurors and prosecutors, their family members, their friends and colleagues all watch television and read the papers.  The media environment may have an impact on their decisions.  


       7.  Remember that high profile and celebrity cases tend to distort the legal system, because the law treats famous people differently.  Sometimes better.  Sometimes worse.  Never the same. It has been said that hard cases make bad law.  So, often, do high profile cases.

       8.  Celebrities will almost always disappoint you.  Most are boring, banal and self-centered.  High profile cases are a decidedly mixed bag.  If you never have a celebrity case during your career, you haven’t missed anything.  

       9.  Clients whether civil or criminal, are increasingly brought to trial not only before a judge in robes and a jury of peers, but also in the “court of public opinion,” where every citizen gets to “cast a vote” on the legal and moral aspects of the case.  For some clients in the public eye—political figures, entertainers, business moguls, even ordinary citizens—the “verdict” rendered by the court of public opinion may be as important as the verdict of the jury or court.  But being aware of the importance of winning in the media is not enough.  A good lawyer must be prepared to face the media, where the usual rules of evidence do not prevail.  A good “all purpose” lawyer must learn the very different “rules” of the court of public opinion and must develop the skills with which to win in that important forum as well.  


       10.  Despite the often distorting effect of the media on the administration of justice, the press serves as an important check and balance on judges, prosecutors, and defense lawyers.  The First Amendment, which guarantees freedom of the press, may sometimes be in conflict with other amendments designed to guarantee a fair trial.  An appropriate balance, difficult as it is to achieve, is essential to democratic governance.  



PART IV:  THE NEVERENDING QUEST FOR EQUALITY AND JUSTICE

Chapter 16:  The Changing Face of Race:  From Color Blindness to Race-Specific Remedies

When I was growing in the pre-Brown versus Board of Education era of legally mandated segregation, the goal of all decent people is the same:  color blindness.  As Martin Luther King was to put it so eloquently several years later:

          “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

We all shared that dream of a color blind America, where success would be based on merit, not race, religion, gender, national origin, ethnicity, class, sexual orientation (this came a bit later) or any other irrelevant or invidious characteristic.  

Our idol was Jackie Robinson, who by his skill, speed, grace and character broke down the color barrier and became the best player on our beloved Brooklyn Dodgers, leading his team to several pennants and its sole World Series championship (only to be unceremoniously traded to the hated Giants at the end of his career, a trade Robinson rejected by retiring with dignity).

At college my hero was Professor John Hope Franklin, the first African American to chair an academic department at a college that had not been historically Black.

At law school, two of my classmates were African-American twins, one of whom went on to become a judge on New York’s highest court, the other of whom became a professor.

All that these heroes needed in order to achieve great success was the elimination of racial barriers – color-blindness.  That had also been the case for Jews:  as soon as religious barriers were dropped, Jews raced to the top of the legal, medical and academic professions.  I believed that the same would be true of all victims of racial and other forms of discrimination.  I really believed that all men and women were created equal.  All they needed was equal opportunity and equal access to achieve equal outcomes.  I believed it because I saw it with my own eyes—at least with regard to my heroes. 

I participated in the civil rights movement in order to help to bring about racial equality – to make Martin Luther King’s dream a reality.

During the 1950s and 1960s, there was little talk of race-specific affirmative action – of having positive, rather than negative, decisions based on the race of the person.  It was enough, we believed, to eliminate race from decision making.  The result, we believed, would be equal opportunity and success, as it had been for Jackie Robinson, John Hope Franklin, and my law school classmates.

We were unaware of the pervasive poverty and deprivations – educational, economic, medical, nutritional – that would make real equality impossible, at least in the near term, for so many black people, even if legal inequalities were eliminated.

I should have known better even back then, especially after I twice travelled to the Deep South occasions during the turbulent years of the civil rights movement.  My first trip was in the early 1960s as part of a student group that was trained at the Howard Law School to be “observers.”  During that short visit I had little direct contact with local Black residents of the South.  I did meet several Black lawyers and civil rights workers, but they were generally from similar backgrounds to my own.   My second trip was by myself in the early summer of 1965, when the Harvard Law School sent me to several historically black colleges in an effort to recruit students for a special program we had instituted to help prepare minority students for law school.  I traveled to several Southern states and lived on the campuses of predominantly Black colleges for several days.  There too I met college students and professors, many of whom came from middle class homes.  I almost certainly met some students from deprived backgrounds, but they appeared, in the context of a campus setting, no different from students with middle class upbringings.

I also spent time at several southwestern colleges with Native American and Hispanic students.  I had insisted that our recruitment efforts not be limited to African American students and that they should include other minorities and disadvantaged groups that sent few if any students to elite law schools.  Even back then, I felt uncomfortable having any decisions, even affirmative ones, based on race alone.  I believed then, and I believe now, that the ideal goal of affirmative action is to level the playing field by providing a current advantage to individuals who were subject to past disadvantages, in order to assure future equal opportunities to compete on the merits with advantaged individuals.  That is the theoretical ideal – individual justice to assure that each person is judged by the quality of their character and other meritocratic criteria – but I soon learned that in practice group factors inevitably come into play.  The real issue is how to strike the appropriate balance between the theoretical ideal and the practical necessities.

This issue came to the fore in a series of controversial Supreme Court decisions, in which I played different roles.  The first was the case of DeFunis in 1974. 87   The second was the case of Bakke in 1997.

The DeFunis case was brought by a white applicant to the law school of the University of Washington, a state school, who had been rejected.  He claimed that if he had been Black, he would have been admitted under the school’s affirmative action program.  The school did not dispute this claim, but argued that it had the right to try to achieve “a reasonably representation” of minority students.

The lower court ruled in favor of Marco DeFunis and ordered his admission.  By the time the case reached the Supreme Court, he had nearly graduated and the school told the justices that he would be allowed to graduate even if the Supreme Court ruled against him.  For that reason, the High Court dismissed the case as moot, thus postponing the decision as to whether it would uphold race-specific affirmative action programs.  But Justice William O. Douglas, probably the court’s most liberal member at the time, and a man who had grown up in Washington State, wanted to decide the issue.  He wrote a dissenting opinion that represented the conventional liberal view with which I, and many in my generation, had been brought up.  He argued that the equal protection clause does not:

     prohibit law schools from evaluating an applicant's prior achievements in light of the barriers that he had to overcome. A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fairminded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him. Because of the weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career his achievements may far outstrip those of his classmates whose earlier records appeared superior by conventional criteria.

     Such a policy would not be limited to blacks, or Chicanos or Filipinos, or American Indians, although undoubtedly groups such as these may in practice be the principal beneficiaries of it. But a poor Appalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the Committee.

Justice Douglas was, in fact, describing his own background in Washington State.  His autobiography was informing his constitutional ideology, as is often the case.  He then went on to distinguish the approach he described from the one employed by the University of Washington law school:

     The difference between such a policy and the one presented by this case is that the Committee would be making decisions on the basis of individual attributes, rather than according a preference solely on the basis of race.

He concluded therefore that since the “clear and central purpose” of the equal protection clause was to “eliminate all official sources of racial discrimination in the states,” it follows that each applicant must be evaluated in “a racially neutral way:”

     There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.

Douglas thus rejected the schools efforts to achieve “representation” of minorities:

     The State…may not proceed by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans… 

Justice Douglas’ dissenting views quickly became the standard approach of old fashioned liberals committed to Martin Luther King’s dream of a color blind America where every student was judged “not by the color of their skin” but rather by their individual achievements in light of the barriers they have had to overcome.

I became an active advocate for an aggressive affirmative action program at Harvard based on non-racial criteria.  I participated in numerous campus and faculty meeting debates, and believed that I was on the side of the angels, favoring a system that would produce real diversity without violating the racial equality mandate of the constitution.   And I had Justice Douglas on my side!

But not every liberal accepted Justice Douglas’ race-neutral approach.  Many Black leaders saw the issue not as one of individual rights, but rather as one of group aspirations.  Blacks had a collective right, under thus view, to “reasonable representation” in the student bodies of universities and other institutions, both public and private.  Some went so far as to argue for “proportional representation.”  This raised the spectre of “quotas,” which might limit the number of those accepted or hired to their proportion of the population.  

The fear of quotas or proportional representation increased as schools throughout the country adopted affirmative action programs with many different elements.  Some contained “targets” for the number of admitted Blacks.  Other had “floors.”  Non black students who were denied admissions to schools with such programs began to file lawsuits.

As these cases made their ways through the courts, a conflict arose between some leaders of the African American and Jewish communities.  Most African American leaders were deeply committed to race-specific affirmative action programs that gave advantages to all Black applicants, regardless of their individual backgrounds.  Most colleges preferred this group approach as well, since I was simpler and they preferred to admit wealthy, well educated, and privileged Black candidates over poorer, less well educated and more “difficult” inner-city Blacks.  Derek Bok, first the Dean of Harvard Law School and then the president of Harvard University, candidly acknowledged that it was far easier to integrate African American graduates of Groten, Fieldston, and St. Paul’s into Harvard than it would be to integrate inner city public school graduates.  (GET BOK QUOTE)

Many Jewish leaders were worried that the hard-earned access of Jews to elite schools would be endangered by what they regarded as “racial quotas”.  They recalled, with bitterness, the “quotas” that had limited Jewish applicants to single digit “Jewish places” in college and university admissions.  There is, of course, a difference between “floor quotas” and “ceiling quotas”.  Blacks were seeking a floor on the number of affirmative action admittees:  no less than 10 or 15 percent.  Jews had been subjected to “ceilings:  no more than 7 to 8 percent.  (When I started Yale Law School in 1959, I noticed that the university’s motto was written in Hebrew—the biblical words “Urim V’Tomim.”  When I asked a friend who has graduated Yale College why Yale’s motto was in Hebrew, he replied:  “It’s a test—if you can read it, you can’t go here!”)  But in a zero sum game – which admissions surely are – floors can impose ceilings, especially if the Black percentage is taken from the Jewish percentage, as Jewish leaders feared was happening.  This reality led to the famous “bagel” exchange:  

     Dr. Chase N. Peterson, dean of admissions at Harvard, recently addressed a group of Jewish faculty members suspicious that Harvard had decided to reduce the number of Jews it would admit.  Peterson averred that there is no particular “docket” or area of the country whose quota of admissions has been reduced.  Rather, he said, it is “the doughnuts around the big cities,” which are not as successful with the Harvard Admissions Committee as they used to be…”But now we have to be terribly hard on people with good grades from the good suburban high schools, good, sold clean-nosed kids who really don’t have enough else going for them.”  The doughnuts, said Peterson, included such areas as Westchester County and Long Island, New York, suburban New Jersey, and Shaker Heights, Ohio.  When he described these areas to the Jewish faculty members, the Crimson reports, one stood up and said, “Dr. Peterson, those aren’t doughnuts, they’re bagels.”

After the account of this exchange appeared, I received dozens of letters and calls from indignant alumni and parents of applicants concerned that Harvard was returning to a quota system.  These concerns increased when the Bakke case came to the Supreme Court and Harvard took the lead in defending race-specific affirmative action programs, such as the one it has adopted.

My brother, Nathan, was then working as the top lawyer for the American Jewish Congress, a generally progressive social action organization.  He asked me to help draft an Amicus in the Bakke brief that presented the views of Jews who supported civil rights but who were concerned about the impact of race-specific affirmative action programs on Jewish applicants. It was a daunting task, requiring an exquisite balance.

The Bakke case involved a white applicant to the medical school at the University of California at Davis (also a state school).  Allan Bakke had been denied admission, he claimed, based on his race.  The California Supreme Court agreed with Bakke, ruling that the medical school’s admission policy violated equal protection.  The medical school sought and obtained review by the Supreme Court.  This time there could be no claim of mootness, since Bakke was not completing his medical school education.  The court would have to confront directly the divisive issue of race-specific affirmative action.

Our brief strongly supported affirmative action as a mechanism for remedying past “educational handicaps” and for assuring diversity among the student body, but we opposed the concept that every racial, religious or other group was entitled to proportional representation—or quotas:


     A society permeated by racial, ethnic, religious and sexual proportional representation would be something quite different from the America we have known. Far from being abhorrent, invidious and irrelevant, racial and ethnic classifications would be officially sanctioned and recognized in all walks of life; each professional or office holder would be regarded, and would regard himself, as a representative of the group from whose quota he comes; and individual aspiration would be limited by the proportionate size of the group to which the individual belongs.

We argued in favor of individualized preferences based on actual experiences:

     If individual blacks applying to Davis Medical School have suffered economic hardship because they encountered discrimination, attended segregated schools or lived in segregated neighborhoods, these facts could be brought to the attention of the Admission Committee and their records evaluated accordingly.  Any other system of preferences based on mere membership in a group which, because of its color or physiognomy, has suffered discrimination can only result in a society in which race consciousness and partisanship become the significant operative forces and race prejudice, rather than being minimized, is legitimated.

We quoted several Black leaders, such as Roy Wilkins, who opposed proportional representation:


     . . . It is ridiculous for Negroes to claim that because they are 40 percent of the population, they should have 40 percent of the jobs, 40 percent of the elected offices, etc.

     This is self-defeating nonsense, for no person of ability wants to be limited in his horizons by an arbitrary quota or wants to endure unqualified people in positions that they fill only because of a numerical racial quota.


     . . . Such practices and, in fact, the whole black-tilted system are doing no favors to Negro applicants. God knows it is true that the cards have been deliberately stacked against blacks. Every feasible step, even those costing extra money, should be taken to correct this racialism.


     But there must not be a lowering of standards. Negroes need to insist on being among the best, not on being the best of the second- or third-raters. . . .



We urged the Court to require the medical school to develop an affirmative action program that was compatible with the dream of a color blind America:  


     Schools may and, we think, should evaluate both grades and test scores in the light of a candidate's background; whether he came from a culturally impoverished home; the nature and quality of the schools he attended; whether family circumstances required him to work while attending school; whether he chose to participate in athletics, the orchestra, school newspaper, literary magazine, campus government; whether he had demonstrated a concern and interest in the broader community by political activity or volunteer work among the sick or underprivileged; and whether he had manifested leadership, industry, perseverance, self-discipline and intense motivation. 

                         …


     Moreover, if petitioner were to conclude that the medical profession as presently composed fails to serve the disadvantaged elements in society, then it could also consider whether applicants for admission, irrespective of race or ethnicity, manifest a genuine commitment to serve those groups currently lacking adequate service. Indeed, it could expressly offer special consideration in the admissions process to those who enter into a binding commitment to serve for a specified period in an urban ghetto, barrio or Indian reservation.


     All of these procedures would result in greater educational opportunities for members of our society's historically deprived minorities, as well as other applicants who are economically and culturally deprived; none of them would offend the Constitution. But what the school may not do, we submit, is to classify applicants for admission on the basis of race or ethnicity and so structure its selection process as to admit an essentially predetermined proportion of members of certain groups.



The Supreme Court’s decision in Bakke accepted our argument against the sort of racial quotas employed by the medical school at issue, but it approved affirmative action programs, such as the one used by Harvard College, that vested enormous discretion in the Admissions Committee.  A five person majority ruled that the type of admissions program used by Davis Medical School did not pass constitutional muster, while the type used by Harvard College does.  Justice Powell, whose opinion contained the judgment of the Court, expressly singled out Harvard College for approval.  He quoted extensively from the description of the Harvard program contained in the amicus curiae brief submitted by Harvard, Columbia, Stanford and Pennsylvania universities.  Powell apparently found it easier to point to an existing system than to define the factors that would satisfy the constitutional and statutory standard  (This reminded me of Justice Steward’s “I know it when I see it” quip about hard core pornography.)  

Powell’s selection of Harvard College as a model for Davis Medical School  was inapt, both because medical school admission is vastly different from college admission and because Harvard, with its vast applicant pool, is vastly different from Davis. But Powell had a good reason for pointing to the Harvard undergraduate admissions program: it is so vague and discretionary as to defy description. It reposes all decision making with a group of Platonic guardians whose task is to shape an entering class so as to maximize its diversity in certain unspecified ways. A Harvard admissions officer may be unable to define the factors that make a good candidate for admission, but is supposed to know a Harvard man or woman when he sees one.
The Bakke decision was thus a triumph of ambiguity and discretion over clarity and candor. Powell condemned Davis Medical School for reserving a discrete number of places in each class for disadvantaged members of specified minority groups, but he applauded Harvard College for employing a process that eschews “target-quotas for the number of blacks” but allows “the race of an applicant [to] tip the balance in his favor just as geographic origin or a life spent on a farm tip the balance in other candidates’ cases.”

At bottom, Powell’s opinion really said little about affirmative action as such. It simply delegated to universities the discretionary power to decide on the degree and definition of the diversity—including or excluding racial factors—that they feel enhance the educational experiences of their students.

The Harvard College description, as quoted in the Powell opinion, tells far from the whole story of Harvard’s quest for diversity. It fails to disclose the enormous efforts that Harvard Colleges undertakes simultaneously to assure a certain kind of uniformity in its student body over time. Harvard (like many other Ivy League colleges) always has given great weight to genealogy—whether the applicant’s parents or other family members attended or taught at Harvard. Since Harvard’s past student and faculty bodies were anything but diverse, this “grandfather policy” guarantees a good deal of homogeneity over the generations of Harvard College classes, as well as homogeneity in a large part of any given class.

Mr. Justice Blackmun doubted whether there was much difference between the Davis and Harvard programs, commenting that the “cynical” may say that “under a program such as Harvard’s one may accomplish covertly what Davis concedes it does openly.” Justice Powell nowhere disputed this. His answer seems to be that even if both programs produce the same result, the Davis program—because of its explicit acknowledgment of racial quotas—“will be viewed as inherently unfair by the public generally as well as by applicants for admission…,” whereas the Harvard program—with its vague consideration of many unquantified factors—will not be as grating to the public or to its unsuccessful applicants.

But there is one way in which the Harvard system is ultimately less fair than the Davis one. In order to receive special consideration under the discredited Davis program, an applicant had to be both individually disadvantaged and a member of a specified racial minority. Under the approved Harvard program, the applicant’s race alone “may tip the balance” in his favor even if he is the scion of a wealthy and powerful family who attended the best schools and personally experienced almost none of the trauma of racial discrimination. (Indeed, today some applicants seek a double preference: as a disadvantaged black and as an advantaged offspring of a Harvard alumnus.) Harvard’s program has the effect of preferring the wealthy and black applicant, for example, over the poor and disadvantaged black or white applicant. In practice, Harvard probably makes more turn on race alone than did Davis. But it does it with typical Harvard class: low-keyed, muted, and without displaying too much exposed skin. Moreover, the history of Harvard’s use of “geographic distribution” as a subterfuge for religious quotas leaves lingering doubts about the bona fides of its alleged quest for diversity. 88 


It will be interesting to see whether the courts, in looking to the Harvard model for constitutional and statutory guidance, will limit themselves to the Harvard College admissions program as described by Justice Powell, or whether they will go beneath the placid surface and probe the more complex and troubling realities of the Harvard College program as it surely must operate in practice. (I have no inside knowledge of how the Harvard College admissions process actually works; my speculations derive from reading the newspapers and from having publicly debated several Harvard officials on the Bakke issue.)

For example, Justice Powell was anything but clear about the degree to which an applicant’s race may be considered in university admissions decisions. At different points in his opinion, he articulates different formulations of the limits on explicit consideration of race in attempts to produce a diverse student body. He says that race must be “simply one element—to be weighed fairly against other elements—in the selection process”; that a school must place “all pertinent elements of diversity…on the same footing, for consideration, although not necessarily according them the same weight”; and that a school must “adhere to a policy of individual comparisons.”

Let us assume that Blank University seeks diversity by trying to include musicians, farm boys, Oklahomans among its entering class, but that it does not instruct its admissions officers to aim for a specified minimum number of musicians, farm boys and Oklahomans in each entering class. May Blank University direct its admissions officers—either explicitly or implicitly—to make certain that the number of blacks or Chicanos should not go beneath a certain approximate percentage in the class? Would that put race on a different “footing” than the other elements of diversity?

The answer to that question may well turn on whether one looks for legal guidance to the description of the Harvard program as quoted in Mr. Justice Powell’s opinion, or to the real world operation of the Harvard program as it probably works in practice. The following description certainly implies that race is not treated differently from other elements of diversity:

     “In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that if Harvard College is to provide a truly heterogeneous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1,100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. 

A closer look at the admissions program in practice might well reveal that the Harvard admissions officers, though interested in assuring geographic, occupational and musical diversity, really pay little or no attention to numbers: it would be no great crisis if one particular entering class at Harvard College had few or even no violinists, Oklahomans, or farm boys. (Football quarterbacks or basketball centers might be another thing altogether.) But these very same admissions officers may well be under instructions—explicit or implicit—to pay close attention to the number of blacks so as to assure that the proportion does not fall below a certain approximate floor. 

The issues raised by the Delphic decision in Bakke continue to challenge the courts and the constitution.  As I write these words, the Supreme Court has agreed to review yet another affirmative action program.  The issues may be similar to that raised in Bakke and subsequent cases, but the personnel on the court has changed. Stay tuned.  

My principled opposition to race-based decision making has been softened somewhat by experience.  I have seen it work in practice.  First and foremost, it has helped produce a new generation of remarkable Black leaders, many of whom were my students and remain my friends and colleagues.  This has changed the face of America – and the world.  Second, it did not have the feared negative impact on the admission of Jewish students.  Jewish leaders were appropriately concerned that the “Black places” would be taken from the hard-earned “Jewish places,” because colleges like Harvard and Yale would never reduce the number of White Anglo Saxon Protestants, who were the “backbone” and the “heritage” of these schools.  Well, that turned out to be wrong.  There has been a significant decrease in the number of “WASPs” admitted to elite schools.  The “donuts”, it turns out, have not only been “bagels;” they have included white bread.  Put another way, Jews have become WASPs, when it comes to admissions.  Many Jewish applicants are now “legacies” who are given an advantage in admission.  It may still be a bit more difficult, all things being equal, for a Jewish non-legacy applicant to be admitted, because all colleges seek “diversity”, but the number of Jewish admittees remains high.  So it has been a win-win, rather than a zero sum game, at least as far as Blacks and Jews are concerned.  There may still be implicit ceilings for some Asian applicants to some schools, but that may be because there are so many qualified Asian-American applicants as well as applicants from many Asian countries.  The donuts therefore include “nan” and dim sum.

My philosophy of life has always been that experience is the primary source of our morality – that rights come from wrongs.  Rights also come from a recognition that they may not produce the wrongs that are feared.  It should not be surprising therefore that based on experience I have changed my views somewhat on the propriety of race-based decisions.  It would also not be surprising if, in the future, I changed my views again, as many African-Americans secure greater power, influence, and privilege in America.  It may become necessary at that point – a point we may not have reached– to base affirmative action programs more on class and other relevant factors than on race alone.

In sum, therefore, my views regarding equality have not changed over the years, since equality is a principle and in my view an enduring and never changing goal.  The means by which we seek to achieve the goal of equality will vary over time and place with experience.  The ongoing experiment with various types of affirmative action programs will never provide a perfect solution to an extraordinary complex problem, but I believe we are moving in the right direction.




Chapter 17 The crumbling wall between church and state:  from separation to christianization

The “equal protection clause” of our Constitution is not the sole mechanism for security equality.  The clauses that require separation of church and state were designed, at least in part, to assure religious equality.

My first memory of being aware of the separation of church and state goes back to the 1950s, when the words “under God” were being added to the pledge of allegiance.  The Yeshivas I went to as a kid were very patriotic.  We recited the pledge at assemblies, and some teachers made us say it every day in class.  

Most kids hate change, so when the two words were added, there was some grumbling, not because of the content of the words, but just because it was different from the way we always had done it.  

I remember thinking about the meaning of the two new words.  Under which God?  Under whose God?  Is there only one God that all American can pledge allegiance to or are there different gods that different religions worship?  What about the Trinity?  Is Jesus God? And what is that thing the Catholic kids call “the Holy Ghost?”  Scary!  But is it God too?  Are Jews even supposed to say the word God (we were always taught to spell it, G-d)?  Is Allah the same god as Elohim?  What about Jehovah—the name we were absolutely prohibited from pronouncing?   

These were precisely the sort of theological questions we were not supposed to be thinking about.  We were supposed to do and not do—go to shul, don’t eat shrimp—and to ask our Rabbi what to think about such esoteric issues.  They know the religiously correct answer.  Yet the addition of the two words to the pledge forced me not only to think about them but to try to place them in the context of my own role as a young Orthodox Jewish skeptic in a largely Christian America.  Our school taught us that even though America was a majority Christian country, George Washington, in his famous letter to the congregants of the Truro Synagogue in Newport, had assured Jewish Americans that in this New Republic “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.”  Here, all Americans “possess alike liberty of conscience and immunity of citizenship” because our government “gives to bigotry no sanction [and] to persecution no assistance.”

These powerful words written by the father of our country were displayed on the bulletin board of our Yeshiva as if they constituted the Magna Carta for American Jews. 89   

Yet we saw bigotry all around us.  We knew that no Jew had ever been elected president.  No Jew had ever been the head of a major corporation or university.  We knew that there were quotas limiting the number of Jews at most Ivy League colleges.  Still, we believed that this was a land of opportunity and that we could do anything, within certain limits, and that even these limits were narrowing, though not yet disappearing.  

I also knew that our Constitution said some things about religion.  In our Yeshiva we learned mostly about the First Amendment’s protection of freedom of religion.  But I started to read a little more about the Constitution and quickly learned that there were three references to religion in that great document of liberty.  The first, in the body of the original Constitution, declared that “no religious test shall ever be required” for holding office under the United States.  Wow, is this really true?  I wondered, then why hasn’t there been a Jewish president?  And why is there only one “Jewish seat” on the Supreme Court?  It sure sounded to me like religious tests were being applied in fact, although it was unconstitutional to do so.  This got me to thinking about the difference between the law as written and practiced.

I also discovered that the First Amendment, in addition to guaranteeing freedom of religion, had an awkwardly phrased guarantee which I did not understand:  “Congress shall make no law respecting an establishment of religion.”  There were two words I didn’t understand.  What does “respecting” mean?  I had always used it to suggest a positive attitude—respect—toward others.  Clearly it had a different meaning in the First Amendment, something like “regarding.”  Second, what did the word “establishment” mean?  I simply had no idea and so I began to do some research.  The answer was anything but simple and the meaning of the term is still not completely clear to me after 60 years of thinking, writing and teaching about it.  

So there was some upside for me in the words “under God” being added to our pledge.  It not only got me thinking, it got me arguing with my friends and even with some of my teachers.  It’s an ongoing argument…

The downside, which was evident to me even back then, was that whatever the words prohibiting an establishment of religion meant, they seemed incomparable with compelling every school boy to declare his belief in a God inserted into the pledge by Congress.  So, although I believed in God (or more likely never thought about any alternative), I decided never to say the words.  I continued to recite the old pledge, confident that it was I, and not those who amended the pledge, who were being patriotic and faithful to the meaning of our Constitution.  I guess I was an early Originalist in that regard, since my reading suggested to me that Jefferson and Madison would not have approved of making young kids declare a belief in God. 90   

Flashing forward a generation, my oldest son Elon, had a similar epiphany in 1970, when my family moved to California for a year so that I could take up residency in The Center For Advanced Study of Behavioral Sciences at Stanford.  We enrolled our kids in a Palo Alto Public School and my 8 year old son Elon got into trouble for refusing to recite the words “under God” in the pledge.  When he came home from school, I asked him how come he had just noticed the words under God, since his elementary school in Cambridge also required periodic recitations of the pledge.  He told me that we were at war in Vietnam and he thought the words—pronounced with a Boston accent—were “under guard.”  It was only a California teacher writing the words on the blackboard that revealed to him that he was being required to take a pledge that included God.  By this time I knew that the Supreme Court had ruled that a religious objector could not be required to recite the pledge, because, as the justices put it:  

     “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can…force citizens to confess by word or act their faith…” 

Elon was excused from saying the words for the remainder of the year.  

Elon suffered no adverse consequences from his religious dissent, but the same cannot be said for Susan Shapiro, a 17 year old high school senior in the Boston area.  When she exercised her right not to participate in the pledge, her teacher said it was as if someone had spit on the Star of David.  She was called names by fellow students and told to “go back to Israel.”  (She was born in America).  I agreed to represent her and, after we threatened to bring a lawsuit; we got the school to permit her not to participate in the pledge and to inform the students that she was within her rights.  

A few years later I was to become involved in a highly publicized case involving the right of a criminal defendant not to be discriminated against on account of his religion, even though he himself was accused of using his religion to defraud co-religionists.  The case involved television evangelist Jim Bakker, who was married to the equally famous Tammy Faye Bakker.  I was retained to argue his sentencing appeal, following his conviction for defrauding PTL (“Praise the Lord” and “People that Love”) Club Lifetime Partners who had paid for homes in Heritage U.S.A.—a Christian family retreat—but were never able live in them.  This is how the appellate court summarized the case:



     Bakker planned to finance these projects by selling lifetime partnerships [that promised] annual lodging in one of the Heritage Village facilities…Many of these partners drew on meager incomes to purchase Heritage Village lodging benefits. Appellant raised at least $158 million through the sale of approximately 153,000 partnerships with lodging benefits.


     Bakker promised television viewers that he would limit the sale of partnerships to ensure that each partner would be able to use the facilities annually. Appellant, however, oversold the partnerships…Bakker used relatively few of the funds solicited from the partners to construct promised facilities…Instead, Bakker used partnership funds to pay operating expenses of the PTL and to support a lavish lifestyle. This extravagant living included gold-plated fixtures and a $570 shower curtain in his bathroom, transportation in private jets and limousines, an air-conditioned tree house for his children and an air-conditioned doghouse for his pets. This combination of overselling partnerships and diverting partnership proceeds meant that the overwhelming majority of the partners never received the lodging benefits Bakker promised them.







After a lengthy and emotional trial, Bakker was convicted by a jury. The judge sentenced him to 45 years in prison.  In imposing that lengthy sentence, the judge—the Honorable Robert Potter, known around the courthouse as “maximum Bob”—said the following:


     "He had no thought whatever about his victims, and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests."




Bakker wrote me a long handwritten letter from prison imploring me to join his appellate team and save him from a lifetime of imprisonment.  There was not enough time before the appellate brief had to be filed for me to take over the entire appeal, but I was particularly appalled by the length of the sentence and the religiously discriminatory reason the judge gave for imposing it.  I agreed therefore to brief and argue the sentencing issue on the appeal (a team of Texas lawyer had been retained long before to argue against the conviction).  




This is how a New York Times journalist characterized the oral argument:


     Last June, barely a week before their brief was due, the Houston lawyers handling Mr. Bakker's appeal, Don Ervin and Brian Wice, learned that Mr. Dershowitz was joining their legal team. He was to handle only a small part of Mr. Bakker's appeal, concerning the 45-year sentence meted out by Judge Robert D. Potter. Mr. Dershowitz insisted he would remain in the background.




     But that, it turned out, was a bit like George Steinbrenner's saying "Yogi Berra is my manager for the rest of the year." In October, when the Bakker appeal was argued, it was around Mr. Dershowitz that everyone clustered…


     Even his co-counsel, two Texans schooled in a tradition of great oratory, were dazzled by what they saw in court. "It was kind of like watching a terrific maestro in front of an orchestra," Mr. Ervin said. Mr. Wice called the performance "mesmerizing" and added: "He looks like a schlep, wearing suits he could have bought in Filene's Basement, woolen socks, and shoes -- I don't know if they still call them Earth shoes. But the judges hung on every word he had to say and bought what he was selling."


     Nonetheless, Mr. Wice couldn’t resist noting what he called Mr. Dershowitz’s predilection for publicity.  “I’ve discovered that the most dangerous place to be in the criminal justice system is not the Federal Penitentiary at Marion or the holding cell at the Tombs, but between Alan Dershowitz and a television camera.”
     Mr. Dershowitz relished the chance to take on Judge Potter (nicknamed "Maximum Bob" for his harsh sentencing), with whom he'd tangled in a previous case. "This is a judge who doesn't understand the difference between a year and a decade, who always adds a zero to the sentence other judges would impose," Mr. Dershowitz said.



Jim Bakker did not have such nice things to say about his other lawyers:
     Alan Dershowitz did an outstanding job highlighting the errors in my case and in my sentencing.  That same could not be said, however, of my Texas attorneys’ attempt to contest the merits of the case.  Their arguments were confusing and unconvincing.  At one point they implied to the judges that I had not intended to defraud the PTL Partners, merely deceive them.  “You can intend to deceive but not intend to defraud,” my lawyer said.  “It is not against the law in this context to deceive.  Of course, I had intended to do not such thing—defraud or deceive the PTL Partners!  That was the last day the Texas firm worked as part of our legal team.  



We waited several months for the decision.  Finally, it was released.  The Court of Appeals ruled that the conviction was valid but the 45 year sentence was not.  In vacating the sentence, the court established a powerful precedent against a judge using his own religious beliefs as a factor in determining the degree of punishment.  This is what they said about the role of religion in sentencing:




     Courts have held that sentences imposed on the basis of impermissible considerations, such as a defendant's race or national origin, violate due process.  [W]e believe that similar principles apply when a judge impermissibly takes his own religious characteristics into account in sentencing.


     Courts… cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it. Whether or not the trial judge has a religion is irrelevant for purposes of sentencing. Regrettably, we are left with the apprehension that the imposition of a lengthy prison term here may have reflected the fact that the court's own sense of religious propriety had somehow been betrayed. 




The court vacated the sentence “with genuine reluctance” because they believed Bakker was indeed guilty:




     Yet, the fact remains that this case involves the explicit intrusion of personal religious principles as the basis of a sentencing decision.  [O]ur review of the sentencing transcript reveals comments that are, in the end, too intemperate to be ignored. Because an impermissible consideration was injected into the sentencing process, we must remand the case [to a] different district judge to ensure that the ends of due process are achieved.




This was precisely the result we asked for:  resentencing by a judge other that Maximum Bob, who surely would have imposed the same sentence without referring to his religion.  The new judge eventually reduced the sentence to 8 years and Bakker was released after serving 4.5 years—quite a reduction from the 45 years originally imposed by Maximum Bob.


Following our victory in the Jim Bakker sentencing appeal, Tammy Faye Bakker declared the judicial ruling “a great victory for Christianity.”  I responded that “the fact that a Jewish lawyer helped bring that about must show that it was a great victory for all Americans.”  The New York Times reported further on her reaction to our victory.




     Tammy Faye Bakker says Mr. Dershowitz has singlehandedly restored her faith in lawyers. "Jim and I are really sold on him and think he's the greatest," she said. "He certainly is worthy of every penny he makes." (In fact, his bill was $20,000, contributed largely by the Bakkers' backers.)


     Mrs. Bakker has yet to make Mr. Dershowitz's acquaintance. But she said she went right out to watch "Reversal of Fortune" and added, "Every time he's on, I run to the television."


     "One of my biggest desires now is to meet him," she went on. "He's our kind of people, a real down-to-earth, nice man."


Eventually, I did meet her.  She kissed and hugged me and repeatedly blessed me in the name of Jesus.  When she kissed me, so much of her makeup came off on my face that it took me several minutes and some hard scrubbing to remove it.  



Several weeks later, I received a gift in the mail from Tammy Faye.  It was a Passover Haggadah—the prayer book that is read at the Seder.  We have a large collection of Haggadahs, some dating back hundreds of hears, many with beautiful illustrations of the Passover story.  At our ecumenical Seder, which usually includes several dozen guests of all religions—we once invited Anwar Sadat’s daughter—we distribute the different Haggadahs among the participants, and each one reads a passage in the English translation.  I try to make the passage selected for each guest relevant to their background.  I purposely gave the Bakker Haggadah to a friend who reads very expressively and who focuses more on his delivery than on the content.  He began to read about the reasons we eat matzo on Passover.  




     “This is the bread of affection that the people of Israel had to eat when they fled from Egypt.”  




So far so good.  But then, it went on to describe why matzo had small holes:




     “The holes in the matzo represent the wounds on the body of our Savior, Jesus Christ, who in his body was punctured during his crucifixion.” 




Not in the traditional Jewish Haggadah!  Tammy Faye had sent me a Christian Evangelical rip-off of the Haggadah designed for use at Seders conducted by Jews for Jesus.  I had perused it before distributing it to my friend to recite, so I knew what it contained.  We all had a great chuckle at what Tammy Faye regarded as an appropriate gift for liberating her husband from bondage.  





These stories and cases vindicating both freedom of, and freedom from religion, highlight one of the great ironies of the American experiment with separation of church and state.  And it was surely an experiment.  Ours was the first nation in the history of the world to separate religion and government, at least in theory.  Our constitutional provisions remain among the strongest in the world.  Yet we are the most religious democracy on the face of the earth.  More Americans believe in God and go to houses of worship than in any other democracy.  No Atheist and Agnostic can be elected to high office (though that was probably not always the case.)  Indeed, in order to get elected, a candidate must loudly and repeatedly proclaim a deep belief in God and a strong commitment  to “faith” (which has become the new political buzz word).

Is this an irony, or is there a causal connection between our constitutional separation of church and state and the high level of religiosity among our people?  I believe the latter is the case.   

The original theory behind the metaphor of “the wall of separation” was to protect the holiness of the church from the corrupting influences of the secular state.  Roger Williams, who is credited with coining the metaphor, was a 17th Century Baptist minister in Providence, Rhode Island.  He insisted that a “hedge or wall of separation between the garden of the church and the wilderness of the world” was necessary to protect religion, as well as to assure freedom of conscience.  And this wall has worked wonderfully to do both. 91