FW: descriptive scholarly accounts of religious identity and judicial behav...
rs at robertsheridan.com
Sun Apr 25 06:33:46 PDT 2010
If this discussion seems to be swirling around itself w/o resolution,
may I suggest a way forward? In "Divided By God," (Farrar, Straus,
Giroux, 2005) the legal scholar Noah Feldman, then of New York
University School of Law and now at Harvard Law, traces the history of
religion and the rise of secularism in America. Since this discussion
has prompted me to pull the volume to start reviewing, let me just refer
to a point or two from the initial pages.
Feldman notes that yes, the thirteen colonies were historically
primarily Christian in population, some having established religions,
such as Massachusetts (Congregational, formerly Puritan) and Virginia
(Anglican or Church of England, Episcopal after the Am. Revolution).
However, during the Founding, after the Revolution, suddenly there were
at least these two major denominations under one national roof, making
the establishment of a national religion for the country all but
impossible, especially as there were other influential groups such as
Baptists, see Roger Williams and the founding of the Rhode Island
Colony, for example. Jefferson famously achieved the Statute on
Religious Freedom for Virginia that, along with the Declaration and the
founding of the University of Virginia he had put on his tombstone as
the distinctions he thought most important. Established religion
remained in several of the states for quite some time after the new
Constitution and Bill of Rights were adopted.
The rise of public schooling in a largely Protestant dominated country
meant that the Bible would be used in the public schools to teach a
common morality good for the nation, it was believed, useful so long as
the common education was Protestant in general, but not sectarian in
particular, given the many competing sects, such as, in addition to the
above one could include Presbyterian, Lutheran, Moravian, and others.
When a large influx of Roman Catholic Irish immigrants arrived in the
decades following the potato famine of 1848, the newcomers objected to
having their children taught from Protestant bibles in the public
schools. Losing this conflict, the Irish embarked on private parochial
school teaching and the request for public support for their schools,
another battle lost.
Following World War II, especially, Jewish sensibilities were aroused
over the use of Christian observances in the public schools, giving rise
to a new movement towards a more secular public school education. Hence
the difficulties with Christian religious invocations (usually) at
graduation, Christian hymn-singing at assemblies, etc. Incidentally,
when I was attending public school in New York, the practice was to
rotate the invocation and benedictions at graduation and other civic
events among Protestant, Catholic and Jewish clergy, evening out the
violation as some of us now see these practices. No one would have
dreamed of having a Muslim clergyman. There were no Muslims in my
borough. And few, if any, Buddhists. This carries over to objections
to mangers at city hall, statuary of the Ten Commandments in the public
square and courthouses (See the Roy Moore controversy in Arizona, c.
2003), to crosses over cities, and to the cross in the Mojave, a part of
Feldman characterizes the antagonists in this discussion as being either
"values evangelicals" or "legal secularists." You can figure out who's
who on this list. He suggests, however, that given the early history of
the church-state conflict in America, that the most important goal is to
keep the two separate as institutions, that is, religion out of
government and government out of religion. This latter probably (or
definitely) was the original goal of the establishment and free exercise
As for the related problem, the use of religious symbols in the public
sphere, Feldman recognizes that to take them down or to ban them
entirely gives rise to feelings of deprivation to people such as the
values evangelicals who are accustomed to seeing them and who regard
them as essential to achieving any kind of common value system for what
they see as the benefit of the country. Feldman suggests trying to
reach an accommodation.
The two Ten Commandment cases from a few years ago seem an object
lesson, what with one being struck down (where it seemed that a sect was
trying to steal a march on the First Amendment) while the other,
statuary of long-standing, and seemingly inoffensive except in an
abstract sense, on the Texas state capital grounds, was permitted to
remain (as not causing any harm to anyone but a strange and litigious
I'm leaving a lot out.
What Feldman does that I admire so much is to use the history as the
matrix on which to hang the well-known cases, which simplifies matters
greatly, instead of the other way around. I can't do justice to the
work in a posting here, in part because I've only just started the
rereading, but I would like to call it to attention as a way forward in
a heated discussion that seems more and more removed from the larger
On 4/25/2010 5:37 AM, John Bickers wrote:
> Prof. Duncan writes:
> "The other side--the good guys--values tolerance and diversity and
> merely wishes to have displays that are meaningful to them be part of
> a public square open to everyone else. They wish not to control public
> culture, but merely to have a fair share of it."
> I think this is very compelling (although I understand people of
> goodwill may differ).
> What I don't understand is how it can have anything at all to do with
> the current case. In Buono, the entire controversy began when a
> Buddhist asked permission to put up a small shrine near the unadorned
> cross he found on federal land. He was denied this opportunity to be
> part of a "public square" (because the government took the position
> that it was not one), and that decision has never changed.
> While the tolerance and diversity argument has much to commend it,
> does anyone think it applies to a case in which a cross without any
> explanatory sign (I continue to have trouble with the description of
> such a display as a "war memorial") stands on land on which other
> religious symbols are denied the right to exist?
> John M. Bickers
> Salmon P. Chase College of Law
> Northern Kentucky University
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof