The point of view of the religious minority

[Michael deHaven Newsom]

I am not suggesting that anybody ignore the uniqueness of a group.  But I do not
understand the Protestant majority to be merely "theoretical."  Finally, I am
not sure that I am arguing for the privileging of the oppressed, rather I think
that I am arguing for adequate forward-looking remedies for past oppression.

Context is everything, something that I have said over and over again.  Context
is relevant here as well.  I mean no more, and I mean no less.  Oppression has
clear patterns, forms and dynamics over the course of our colonial and national
history.  I would simply remind us not to forget that fact.

"David E. Guinn" wrote:

> I'm afraid I disagree.  I too find the homoginization of Protestant
> diversity more than a little troubling.  While I am sympathic to arguments
> arising out of a politics of difference (which is where I assume Michael
> grounds his "religious minority" analysis - a priveleging of the oppressed)
> I am very uncomfortable with a perspective that ignores the uniqueness of
> any group simply because they share a characteristic of a theoretical
> majority (i.e. they are "white" - they are "protestant" etc.)
>
> David
>
> ----- Original Message -----
> From: "Michael deHaven Newsom" <mnewsom at LAW.HOWARD.EDU>
> To: <RELIGIONLAW at listserv.ucla.edu>
> Sent: Tuesday, October 02, 2001 3:08 PM
> Subject: Re: The point of view of the religious minority
>
> > You're harping.
> >
> > Eugene Volokh wrote:
> >
> > >         I look forward to Michael's message alerting me to the
> publication of his
> > > future article.  In the meantime, though, I continue to be somewhat
> > > troubled.
> > >
> > >         On this list, we've seen a good deal of criticism from Michael
> of
> > > Protestantism and the Protestant influence in American law and life.
> Now
> > > this may be perfectly apt criticism -- I certainly do not think that any
> > > religious group should be immune from criticism.  But I've also seen, as
> I
> > > mentioned, in a thread where he said that the Establishment Clause focus
> > > should stress "the point of view of the religious minority," a statement
> > > that Michael finds "the very idea of white Protestant American religious
> > > minority oxymoronic."  This seemed to me to suggest that white
> Protestant
> > > religious denominations should not qualify as religious minorities whose
> > > views get considered in his analysis -- that his Religion Clauses
> framework
> > > would require the courts to in some measure treat white Protestant
> American
> > > groups worse than other religious groups.
> > >
> > >         To clarify this, I asked whether Michael would indeed "treat
> claims made by
> > > white Protestant denominations worse than those made by other religious
> > > groups," since that struck me as the most plausible interpretation of
> his
> > > earlier comments.  The answer he gave was just "No," with no
> qualification
> > > or explanation, even though (as I've said) 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
> (a
> > > status that would seemingly confer certain benefits in his proposed
> legal
> > > framework).
> > >
> > >         Imagine that we'd seen similar statements about a Jewish
> Influence or a
> > > Catholic International Power as opposed to a Protestant Empire.  I think
> > > we'd like to know a bit more about just what the legal implications of
> this
> > > criticism of Jews and Catholics might be, even if we thought that the
> > > factual basis for the criticism was at least possibly sound.  When we
> then
> > > saw (1) suggestions that a certain body of law should stress "the point
> view
> > > of X" coupled with (2) statements that "the very idea of [Catholic or
> Jewish
> > > groups qualifying as X is] oxymoronic," I think we'd also like to hear a
> bit
> > > more explanation of just what this might mean, even before the full law
> > > review article is completed.
> > >
> > >         Now perhaps I'm the only one on this list who takes this view,
> in which
> > > case I'll be glad to stop harping on this.  But I do think that this
> might
> > > be helpful to figure out.
> > >
> > >         Eugene
> > >
> > > > -----Original Message-----
> > > > From: Law & Religion issues for Law Academics
> > > > [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Michael deHaven
> > > > Newsom
> > > > Sent: Tuesday, October 02, 2001 1:48 PM
> > > > To: RELIGIONLAW at listserv.ucla.edu
> > > > Subject: Re: The point of view of the religious minority
> > > >
> > > >
> > > > 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
> > > > > >
> > > >
>
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