book review forward

[tom berg]

On Sat, 28 Jun 1997 11:06:07 MST Michael McConnell
<michael.mcconnell at LAW.UTAH.EDU> wrote:

> Of course, the Justices' religious and cultural
> backgrounds affect their decisionmaking. But not in the
> crude sense of favoring Christians over non-Christians. The
> Justices are, with a few exceptions, drawn from the secular
> elite, which is not especially favorable to Christianity.
> When I was a law clerk (1980-81), not a single Justice was
> a churchgoer. Their bias is not against minority religions;
> indeed, if anything, they have a (healthy) bias in favor of
> minority religions.  Certainly nominal Christians on the
> Court have no bias against Judaism; antisemitism would be
> abhorrent, akin to belching in public. Their bias is the
> bias of the secular elite: against Catholicism
> (anti-Catholicism has been called the "anti-semitism of the
> intellectuals") and against evangelical/fundamentalist
> Christianity. (If you want an example of the latter, look
> at Edwards v. Aguillard; for examples of anti-Catholic
> bias, look at some of the opinions by Black and Douglas in
> the parochial school cases.) Most significantly, their bias
> is against the "intrusion" of religion into areas of life
> where secular considerations, they think, shoule be
> dominant. So long is religion is relegated to a small
> private sphere, where it is irrelevant to everyone else,
> the Justices are all for Free Exercise.
>
> If you are interested in bias against Judaism, you should
> talk to litigators in free ex cases on behalf of Jews. (Nat
> Lewin, for example.) They will tell you that the greatest
> resistance comes from secular Jews. In the Goldman case,
> for example, Lewin spent much of his oral argument in the
> D.C. Circuit arguing with Abner Mikva over whether Captain
> Goldman's desire to wear the yarmulke was a genuine
> religious conviction or a matter of personal preference. It
> was the churchgoing Protestant, Judge Starr, who sided with
> Goldman. And look at who was most hostile to the desire of
> the Satmar Hasidim to maintain a separate and autonomous
> way of life in Kiryas Joel: Stevens the secularist,
> Blackmun the nominal Protestand, and Ginsburg, the Jew.
>
> I think an important source of bias comes from within
> religious communities--bias by the less observant against
> the more observant. (If I may be forgiven a bit of armchair
> psychologizing, I think this is becuase of feelings of
> guilt.) Thus, secular Jews are the most intolerant of
> Orthodox and Hasids; liberal Protestants are the most
> intolerant of Protestant fundamentalists; and liberal
> Catholics are the most hostile toward old-fashioned
> Catholics.

Michael, I agree with everything else in your post, but I'm
going to pick on the one statement that you admittedly
advanced with something of a disclaimer.  When liberal
members of a faith express special hostility toward
conservative ones -- and I mean serious liberal members
now, not just nominal ones -- isn't a much fairer reading
that many of them believe that the conservatives focus on
the wrong aspects of the faith and therefore tarnish the
image and appeal that the faith otherwise would properly
have?  That was certainly the argument of many liberal
Protestants against fundamentalists in the 19th and 20th
centuries.  Right or wrong, they thought that adherence to
relatively minor doctrines was unnecessarily harming the
church's ability to reach educated people, working class
people, and others with what the liberals deemed to be the
essential elements of the Christian gospel.

In unfair competition law, if somebody makes a product in
the same general area as mine and calls it a name like mine,
but the product is second-rate, I may be quite angry, and I
may be able to bring a "tarnishment" claim based on consumer
confusion.  But I won't care about, or be able to sue over,
somebody making a second-rate product in a completely
different area than mine, with a totally different name.
Aren't conservative and liberal camps within the major
faiths both concerned that each other is, among other
things, creating consumer confusion?

-- Tom Berg, Cumberland Law School, Samford University






 And, perhaps to a lesser extent, the more
> observant return the favor (although this phenomenon is
> less observable in free ex cases, both because the
> judiciary has little representation from the more
> observant, and because the more observant tend to generate
> more free ex claims).
>
> But to repeat: I see absolutely no evidence that the Court
> favors Christians over non-Christians.
>
>
> -- Michael McConnell (U of Utah)

----------------------
tom berg
tcberg at samford.edu