Context and how the law should treat "white Protestant" denominations

[Thomas C. Berg]

I agree with Mark Scarberry on the substance of the
constitutional rightness of vouchers and the constitutional
wrongness of pushing prayers or Bible readings on students
in the public schools.  But I think that most of the work
in his analysis is done by his phrase "force their
religious (or anti-religious) views [on others]," not by
whether it is a "majority" or "minority" religion taking
the action.

As Mark says, if vouchers are legitimate, they should be
equally provided to all qualified schools -- including those
that might be classified in some religious "majority" -- on
the premise that this is not forcing religious views on
anyone (the parents and students choose the school, and the
taxpayers are funding education not religion; whether
this premise is right or wrong, it would be the premise
for approving vouchers).  And I think that Mark would agree
that "evangelical" student groups may meet in public
schools, and try to persuade their fellow-students
non-coercively, on the same terms as other student groups
-- even if evangelicals might be classified by some
(including Professor Newsom) as the "majority."

I support a religion clause jurisprudence designed to
protect religious minorities.  But I think that the
majority-minority analysis should usually come in at the
stage of deciding what the general legal rule should be for
a category of church-state disputes, rather than deciding
how to treat a particular group according to whether it's a
majority or minority.  Thus we prohibit
government-sponsored religious exercises in public schools
because they are so likely to impose on religious
minorities (whoever those minorities are in a particular
situation).  By contrast, a truly neutral voucher program
and a truly neutral equal-access program for student groups
is much more likely to respect and even protect religious
minorities.  (I understand that vouchers could have
negative effects on religious minorities, as Alan
Brownstein has argued, but they are also a way to allow an
opt-out for religious minorities -- from Catholics to
Orthodox Jews to current-day evangelicals -- who object to
the attitude of public schools toward religion.  At the
least, the question whether vouchers help or hurt religious
minorities is far more complex than the question whether
government-sponsored prayers help or hurt religious
minorities.)

I think that the majority-minority analysis should come in
this way -- something like "categorical balancing" in free
speech cases -- rather than through trying to decide as a
sociological or empirical matter whether the religious
group in a case is or isn't generally a "religious
minority."  I share the concern expressed by Eugene and by
Vance Koven that the latter question is too disputed --
too subject to irresolvable differences of judgment about
history -- to serve as a central basis for constitutional
doctrine.  Just to pick an example of a dispute:  I do
agree with Professor Newsom's thesis that some form of
Protestantism has run the show for most of American
history; but I think it is pushing it much further to say
that the thing we now call "evangelical Protestantism" is
running the show today in the same way that "evangelical
Protestantism" ran the show in the 19th century.  Those
two, I think, are different phenomena -- not unrelated, of
course, but not the same continuous movement either.  At
any rate, I doubt that the subtleties and uncertainties of
such historical and sociological analysis can be made the
central basis of a fair religion clause jurisprudence.

Moreover, given the variety of religious patterns in this
country, groups that are (were) majorities in one place
are quite likely to be minorities in another.  A
secularized curriculum, and the need for opt-outs for
traditionalist students, is probably a greater concern in
Massachusetts; school-sponsored prayer (generically
Christian), with its imposition on Jews and others, is a
greater concern in Alabama.  To reiterate, religion clause
jurisprudence should be affected by what kinds of actions
tend to impose on religious minorities (whoever that is
in a particular situation), but not by determinations as to
what groups are, once and for all in America, religious
minorities.

Tom Berg
Cumberland Law School
(University of St. Thomas (Minneapolis) from January 2002)

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Birmingham, AL 35229
(205)726-2415
Email: tcberg at samford.edu