Huntington in WSJ re "Under God"
Berg, Thomas C.
TCBERG at stthomas.edu
Tue Jun 22 16:50:35 PDT 2004
By the way, my St. Thomas colleague Dan Libenson gave a talk at Boston
College Law School this spring with some interesting reflections on the
contributions one can make as a faculty member at a law school operated by a
different faith than one's own (and where the faith basis of the law school
is more than nominal). His thoughts may be of interest to anyone concerned
with this question of how one can be a "minority" member in a
particularistic community, bring a different perspective, and yet be a full
member of the community. If anyone is interested, you can write to him off
list at djlibenson at stthomas.edu <mailto:djlibenson at stthomas.edu> .
Tom Berg
_____
From: Berg, Thomas C.
Sent: Tue 6/22/2004 4:29 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Huntington in WSJ re "Under God"
Returning from a few days out of town, I am glad to see that Alan felt
personally the sense in which he and other speakers were invited to our
inaugural law journal symposium at St. Thomas, Minnesota: as an honored
guest. (If I may put in a brief plug, the inaugural issue is now in print,
to be available on Lexis and Westlaw soon. It honors Judge John Noonan and
contains 30 articles on topics concerning law, ethics, religion, and social
justice, with contributors including, among others, Jean Elshtain, Judge
Stephen Reinhardt, john powell, Sandy Levinson, Marie Failinger, and -- in a
wonderful panel on religious freedom -- Michael Perry, Steven Smith, Alan
Brownstein, and Kathleen Brady.)
With respect to "minority" or "outsider" religions, I think that this is a
very tricky category that, with a great many religious groups, is dependent
on what part of the country one lives in, what institution or sector of
society is the setting for a particular dispute, and what kind of issue is
involved. To continue with the example of evangelical Protestants, they
dominate numerically and culturally in much of the South, but not in urban
sections of the two coasts. Even in the south or Midwest, evangelicals may
predominate in the general population, but be pretty much outsiders among
the decisionmakers of certain institutions like state universities. And
with respect to many social and political issues that spawn litigation --
over things like religious exemptions from laws -- the major divide is not
between Protestants and Catholics or between Christians and Jews, but
between "traditionalist" and "progressive" wings of those various groups.
As a result, if Religion Clause jurisprudence is to focus on protecting
minority faiths, it should generally do so not by identifying certain groups
as everywhere and always minorities, but by developing rules that will
protect *whoever* happens to be the minority in a given context. That's one
part of the argument of a piece I have in draft form called "Minority
Religions and the Religion Clauses."
(When I say "outsider," BTW, I mean not that someone *should* be viewed as
not belonging, but simply that such a view exists in the culture.)
Tom Berg
University of St. Thomas (Minnesota)
-----Original Message-----
From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu
<mailto:aebrownstein at ucdavis.edu> ]
Sent: Wednesday, June 16, 2004 6:02 PM
To: Law & Religion issues for Law Academics
Subject: Re: Huntington in WSJ re "Under God"
Well, if you state it as a tautology, there isn't much to say about it. But
I would think that the underlying premise -- that non-Christians
are "outsiders" -- not full members of the political community whose
political status is properly determined by the religious community to which
they belong -- is controversial in some places. (I haven't been to Chicago
recently, so maybe this is accepted wisdom there.)
I work with lots of Christians who would challenge that contention. (Maybe
they are just being polite.) And just this Fall, I spoke on a panel at a
University of St. Thomas symposium. The University of St. Thomas is a
Catholic school. I didn't think I was an outsider of lesser status. Tom
Berg teaches there. Maybe we should check with him. The key note speaker at
the Symposium dinner was a Jewish United States Senator from Minnesota. He
concealed his political outsider status very effectively. I missed it
completely.
(Now I will say that when I participate in an event at a religious
institution of another faith, I feel a bit out of place when prayers are
offered -- since I can not really participate in these religious exercises.
But I don't feel like an outsider of lesser status. I'm a guest. I'm not a
member of the community that invited me to the event. My feelings have
nothing to do with status. My non-Jewish friends who will attend my son's
Bar Mitzvah this July will not feel that they are of any lesser status
because they will not participate in the religious service at our
Synagogue. That kind of an experience of difference does not make one an
"outsider")
But when we are speaking about outsiders in terms of not being full members
of the political community, we are speaking about a different kind of
experience -- and here opinions are all over the map. Some members of this
list, for example, have argued that conservative Christians are outsiders
today in contemporary, secular America. And I hear it a lot from the far
Right and the far Left that Jews run the country and the media -- that we
are the ultimate insiders. And what about minority Christian denominations
like Christian Scientists, Jehovah's Witnesses, Seventh-day Adventists. Are
they insiders or outsiders?
The problem with Huntington's analysis is that he apparently buys into the
idea that there should be religious insiders and outsiders in the United
States. That's the kind of analysis that suggests that the conventional
understanding of the Establishment Clause is to make outsiders feel like
insiders. I suggest an alternative interpretation -- The Establishment
Clause should prevent government from treating people like insiders or
outsiders because of their religious beliefs. We are all American citizens
of equal worth and status and deserving of equal respect from government.
That shouldn't be controversial. Unfortunately, it is.
Alan Brownstein
UC Davis
At 04:17 PM 6/16/2004 -0500, you wrote:
>I take his point to be simply that religious outsiders may feel like
>outsiders because they are outsiders. A pretty uncontroversial point as
>far as it goes, if not often said in polite company. More interesting is
>the tacit corollary, a challenge to the conventional legal wisdom that a
>chief function of the EC is to make outsiders feel like insiders.
>
>Richard Menard
>Sidley Austin Brown & Wood
>202-736-8016 (office)
>202-246-7408 (mobile)
>
>-----Original Message-----
>From: religionlaw-bounces at lists.ucla.edu
<religionlaw-bounces at lists.ucla.edu>
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>Sent: Wed Jun 16 16:59:15 2004
>Subject: Re: Huntington in WSJ re "Under God"
>
>An odd piece. The author doesn't distinguish between being a minority and
>being an outsider. He doesn't distinguish between the experience of
>difference that arises when private individuals and institutions espouse
>beliefs and engage in practices that do not parallel one's own beliefs and
>practices and the experience of having the government explicitly endorse
>those differences. He doesn't distinguish between being a visitor or guest
>and being a an equal member of a community. And he doesn't distinguish
>between is and ought -- the fact of religious demographics and normative or
>legal questions regarding how a society committed to liberty and equality
>should take account of those demographic differences.
>
>Most of the points Huntington makes were made decades ago by commentators
>responding to the school prayer decisions in the Sixties.
>
>Alan Brownstein
>UC Davis
>
>
>
>At 01:03 PM 6/16/2004 -0400, you wrote:
> >Long op-ed of likely interest to list members:
> >
> <http://www.opinionjournal.com/editorial/?id=110005223
<http://www.opinionjournal.com/editorial/?id=110005223>
>http://www.opinionjournal.com/editorial/?id=110005223
<http://www.opinionjournal.com/editorial/?id=110005223>
>
> >
> >
> >Sent from the BlackBerry Wireless Handheld of:
> >
> >Anthony R. Picarello, Jr.
> >Vice President & General Counsel
> >The Becket Fund for Religious Liberty
> >1350 Connecticut Avenue, NW, Suite 605
> >Washington, DC 20036-1735
> >Phone: (202) 955-0095
> >Fax: (202) 955-0090
> >
> >_______________________________________________
> >To post, send message to Religionlaw at lists.ucla.edu
> >To subscribe, unsubscribe, change options, or get password, see
> ><http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> >http://lists
<http://lists> .
> ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
><http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
>
>Sidley Austin Brown & Wood LLP mail server made the following annotations
>on 06/16/2004, 04:20:46 PM
>---------------------------------------------------------------------
>
>This e-mail is sent by a law firm and may contain information that is
>privileged or confidential. If you are not the intended recipient, please
>delete the e-mail and any attachments and notify us immediately.
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
More information about the Religionlaw
mailing list