Does Brown v. Bd. of Ed. "disfavor a religion"?

[Michael Newsom]

I think that I agree with you that the consensus itself is contested.  That is why I get such a strong reaction to my claim that the Protestant Empire is both alive and well, and is a bad thing.  I would suggest, however, that discussions about the contestsed meanings of consensus, are in point of fact the most interesting ones if one wants to understand American church-state law.  We might disagree over the significance or the utility of the idea or concept of Protestant Empire.    I think that it is a big deal.  But that, in and of itself, would lead to a much more helpful discussion than one that seeks to pin down some definitive meaning of "neutrality" for example.
  ----- Original Message ----- 
  From: Robert Justin Lipkin 
  To: RELIGIONLAW at listserv.ucla.edu 
  Sent: Thursday, October 03, 2002 6:17 AM
  Subject: Re: Does Brown v. Bd. of Ed. "disfavor a religion"?


  In a message dated 10/2/2002 1:22:52 PM Eastern Daylight Time, mnewsom at LAW.HOWARD.EDU writes:



    if we want to understand American church-state law, we have to understand the consensus as it has changed and developed over time, and we also need to explore the racial dimensions of that consensus.  


         If this argument means that consensus (traditions of one sort or another) provides the context for (raising and for conceivably) resolving questions in church-state law (in my view in any domain involving principles of practical reasoning), but only the first step in understanding that domain, I think the argument is intrinsically interesting and important.  The problem is that this consensus (or tradition) is probably, as W. B. Gallie and others have put it, "essentially contested," or in perhaps more familiar terms, subject to interpretation, and so I'd be skeptical about regarding it as fixed or as representing a neutral touchstone for determining the precise character of church-state law. 

         In my view, race is central for understanding almost any issue in American constitutional law and politics.  

         I am unfamiliar with Herberg's work and therefore I cannot offer an opinion concerning his views.

  Bobby Lipkin
  Widener University School of Law
  Delaware

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