The point of view of the religious minority

[Michael deHaven Newsom]

Eugene, you asked the wrong question.  Hence my laconic response, a response that you
usually direct to my questions, by the way.  Your refusal to answer my questions is at
least as troubling.

The issue is not whether white evangelical Protesatnt groups should be treated worse
than other religious minorities, but rather in light of history and experience, how
they should be treated.  This invites a discussion into what constitutes a religious
minority, I suppose.  It would take a lengthy law review article adequately to answer
the question.  I wrote one -- or at least a draft of one, assuming that it gets
published -- which begins to answer it.  If it gets published, I will be sure to let
you know.

Eugene Volokh wrote:

>         I always appreciate people being laconic, but I confess I'm a bit troubled
> here.  Michael often talks about Protestant Empire, and in ways that seem to
> suggest that he's quite troubled not just by it but by the continuing
> influence of Protestant denominations in American life.  Then he also
> says -- in a thread where he said that the Establishment Clause focus should
> stress "the point of view of the religious minority" that he finds "the very
> idea of white Protestant American religious minority oxymoronic," which
> seems to suggest that white Protestant religious denominations should not
> qualify as religious minorities whose views get considered in his analysis.
>
>         But then when asked whether he would "treat claims made by white Protestant
> denominations worse than those made by other religious groups," the answer
> given is just "No," with no qualification or explanation, even though he
> does seem to argue that there's something special about white Protestant
> American denominations, even small ones, that keeps them from qualifying as
> religious minorities.  I guess I'm more than a bit puzzled by all this.
>
>         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 5:27 PM
> > To: RELIGIONLAW at listserv.ucla.edu
> > Subject: Re: The point of view of the religious minority
> >
> >
> > Eugene Volokh wrote:
> >
> > >
> > > 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.
> >
> > No.
> >
> > >
> > >
> > >         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
> >