The point of view of the religious minority

[Eugene Volokh]

        I generally agree with Michael that we probably ought to "leave it at
that," since I think we've set forth our positions pretty clearly.  My one
remaining question is in response to the following exchange:

> I'm not at all sure that you are right on the demographic facts, but no
matter.  (As an
> aside, the formalist that you are, I should have thought that
Protestantism as a matter
> of form would be unobjectionable to you.)  I do not make the formalist
claim, but I do
> make the historical claim regarding the meaning and significance of
evangelical
> Protestantism in shaping this country of ours.  Protestants may disagree
about
> somethings, but they agree mightily on others, and it is that agreement
that matters.
> For historical reasons, I find the very idea of white Protestant American
religious
> minority oxymoronic.

I really want to make sure that I'm not misunderstanding this -- is the
claim that Religion Clauses jurisprudence should treat claims made by white
Protestant denominations worse than those made by other religious groups
(e.g., nonwhite Protestant denominations, or white non-Protestant
denominations)?  If so, I'd like to hear what others on this list think of
this approach.

        Eugene



> -----Original Message-----
> From: Law & Religion issues for Law Academics
> [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Michael deHaven
> Newsom
> Sent: Monday, October 01, 2001 3:39 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: The point of view of the religious minority
>
>
> I have interlineated my responses.
>
> Eugene Volokh wrote:
>
> >         I'm a bit puzzled by Michael's response here.  His
> bottom line analysis
> > might actually be correct, but the curious thing is that it
> nowhere mentions
> > "the point of view of the religious minority" that Michael thinks is so
> > central.
> >
> >         I take it that the creationist would say something like
> this:  "True, to
> > the majority, and especially to professional educators, the teaching of
> > evolution might look like 'instruction'.  But we in the
> minority experience
> > it as indoctrination, because evolution is taught and creation
> science is
> > not, because even though evolution is taught just as a
> 'theory', students
> > know that the teachers actually endorse this theory, and because of the
> > decades-long history of hostility towards creationism --
> especially in the
> > educational establishment and other elites -- in this
> jurisdiction (e.g.,
> > New Jersey or Berkeley or wherever).
> >
> >         "Surely this repeated oral teaching, in the context of
> a class, is at least
> > as much indoctrination, at least from our religious minority
> perspective, as
> > signs saying 'God Bless America' would be.  What's more,
> whenever someone in
> > the religious majority uses notoriously malleable distinctions like
> > 'instruction vs. indoctrination,' we know that the application of the
> > distinction necessarily rests on the majority's understanding.
> You have to
> > recognize that we in the religious minority may draw the line
> in a different
> > place."
> >
> >         How do we say no to a claim such as this?  If the
> religious minority says
> > that it experiences the teaching of evolution as indoctrination and not
> > education, at least from their own point of view, how do we say
> "No, from
> > your own point of view, it isn't indoctrination"?
>
> I do not agree that the line between instruction and
> indoctrination is "notoriously
> malleable."  I am not aware that the Court has said such a thing.
>  Indeed, in
> connection with religion in the common schools, the Court has
> said just the opposite
> See Schempp.
>
> Now the more interesting question is what are we to do with a
> claim that all
> instruction -- at least on a certain topic -- is indoctrination.
> We have to look at
> the claim from the point of view of the religious minority to be
> sure.  The question
> becomes what happens if we agree with the claim.  What is the
> remedy?  The teaching of
> creationism alongside evolution?  Well that is a lousy remedy
> because creationism is,
> clearly, an evangelical Protestant notion.  Those who are not
> evangelical Protestants
> are thus subjected to what they can fairly claim, ex hypothesi,
> to be religious
> indoctrination.  Perhaps we teach nothing on the subject at all.
> That is also a lousy
> answer for the national security reasons that I have mentioned.
>
> Now there is another approach which requires some teaching, but
> also some "openness."
> I should have mentioned this before, but my suggestion goes
> something like this.  The
> common schools cannot teach definitively on a host of questions.
> However,it does not
> follow that the common schools have to remain entirely silent on
> those questions
> either.  Other private or religious institutions can be invoked
> or called upon to teach
> -- or to indoctrinate -- on these questions.  I suppose that I
> envisage a cooperative
> venture between the common schools and other non-public
> institutions in connection with
> the teaching of certain subjects.  But cooperation is a far cry
> from silence.  So I
> suppose the question turns on one of remedy.
>
> Let me take the case that I would have supposed that Eugene would
> have proposed: a
> religion that practices or wishes to practice ritual murder: how
> do we take the
> minority religious viewpoint into account in this case.
>
> Actually, it is fairly easy.  We can trump the religious
> viewpoint only if there are
> awfully good reasons for doing so.  The problem is that making
> religious majorities
> feel good, or to help religious majorities lord it over religious
> minorities are lousy
> reasons.
>
> >         Michael also mentions some other points; a few
> responses to that:
> >
> >         1)  I'm not sure that the majority of the U.S. consists
> of "evangelical
> > Protestants," but even if it does, what of it?  I am pretty
> sure that only a
> > small minority of the U.S. belongs to religious denominations
> that perceive
> > evolution as disapproval of their religious views.  We all know the
> > tremendous diversity of denominations within Protestantism -- in fact,
> > that's the hallmark of Prostants.  Surely we can't say that any
> group that
> > happens to be formally Protestant does *not* get their view
> considered under
> > Michael's test, simply because ostensibly they belong to a broader
> > "Protestant" majority, albeit one that may disagree with them on many
> > doctrinal points.
>
> I'm not at all sure that you are right on the demographic facts,
> but no matter.  (As an
> aside, the formalist that you are, I should have thought that
> Protestantism as a matter
> of form would be unobjectionable to you.)  I do not make the
> formalist claim, but I do
> make the historical claim regarding the meaning and significance
> of evangelical
> Protestantism in shaping this country of ours.  Protestants may
> disagree about
> somethings, but they agree mightily on others, and it is that
> agreement that matters.
> For historical reasons, I find the very idea of white Protestant
> American religious
> minority oxymoronic.
>
> >
> >         2)  If the teaching of evolution (and only evolution,
> with no creation
> > science accompaniment) in K-12 public schools is justified by a
> "national
> > security interest" that may trump whatever Establishment Clause
> right is at
> > stake here, then surely this right is singularly easy to trump.
>
> Not after September 11, 2001 is it "singularly easy to trump."
> (Nor was it singluarly
> easy to trump in connection with WWII, the Cold War, Vietnam and
> the like.)
>
> > One could
> > equally argue that teaching children that patriotism is
> divinely sanctioned
> > is at least as strongly connected to a "national security interest."
>
> No, I disagree that it is in any meaningful sense "equal."
>
> >
> >
> >         3)  As most list members know, I take the view that the
> Free Exercise
> > Clause does not require exemptions from generally applicable laws, so I
> > think the Mozert result is correct.  But if a religious freedom regime
> > (whether under the Free Exercise Clause, under a state constitutional
> > provision, or under a state RFRA) were to indeed require strict scrutiny
> > here, then I think Mozert should come out the other way; I would find it
> > hard to justify the Mozert result under strict scrutiny.
>
> Recall the problem of remedy.  Mozert still comes out the same way.
>
> >  But in any event,
> > my point here wasn't about the Free Exercise Clause, but about the
> > Establishment Clause, or at least the Establishment Clause as
> applied under
> > an approach that really does focus on the religious minority's
> viewpoint.
>
> Again, to focus on that viewpoint is not to say that that
> viewpoint always prevails.
> Rather, it is to say that it takes a powerful and compelling
> reason to trump that
> viewpoint.  I do not understand that this is your position.  But
> it is mine.
>
> >
> >
> >         4)  As to "may trump your claimed religious war in
> which a creationist
> > minority is beset by a horde of heavens knows what?," I just don't quite
> > understand what this clause refers to.
>
> "Heaven" should have been in the singular.  That is a typo.  My
> point merely is that
> you make much to much of a religious war.  But then, you and I
> understand the
> significance of evangelical Protestantism differently.  We ought
> to leave it at that.
>
> >
> >
> >         Eugene