FW: descriptive scholarly accounts of religious identity and judicial behav...

[Robert Sheridan]

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 
this discussion.

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 
clauses.

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 
complainant).

  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 
context.

rs

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
>
>
>
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