Tag Archives: Religion in America

Sullivan, “A Ministry of Presence”

This September, University of Chicago Press will release A Ministry of Presence: Chaplaincy, Spiritual Care, and the Law by Winnifred Fallers Sullivan (Indiana University, Bloomington).  The publishers description follows:

A Ministry of PresenceMost people in the United States today no longer live their lives under the guidance of local institutionalized religious leadership, such as rabbis, ministers, and priests; rather, liberals and conservatives alike have taken charge of their own religious or spiritual practices. This shift, along with other social and cultural changes, has opened up a perhaps surprising space for chaplains—spiritual professionals who usually work with the endorsement of a religious community but do that work away from its immediate hierarchy, ministering in a secular institution, such as a prison, the military, or an airport, to an ever-changing group of clients of widely varying faiths and beliefs.

In A Ministry of Presence, Winnifred Fallers Sullivan explores how chaplaincy works in the United States—and in particular how it sits uneasily at the intersection of law and religion, spiritual care, and government regulation. Responsible for ministering to the wandering souls of the globalized economy, the chaplain works with a clientele often unmarked by a specific religious identity, and does so on behalf of a secular institution, like a hospital. Sullivan’s examination of the sometimes heroic but often deeply ambiguous work yields fascinating insights into contemporary spiritual life, the politics of religious freedom, and the neverending negotiation of religion’s place in American institutional life.

My Review of Steve Smith’s Rise and Decline of American Religious Freedom

I’ve got a review of Steve’s book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

The Necessity of Legal Sacralization

One of the topics of a Libertas Project session concerned the Napoleonmaxim, “Christianity is part of the common law.” There is a fascinating debate between Thomas Jefferson and Joseph Story (both in their unofficial capacities) about the maxim, much of which concerns the accuracy of the translation from the French of the phrase, ancien scripture, as used by a fifteenth century judge named Sir John Prisot (Chief Justice of Common Pleas, as far as I have been able to determine). You can see the debate worked out in this fine volume edited by Professors Daniel Dreisbach and Mark David Hall. The maxim was invoked in 19th century American judicial decisions concerning violations of anti-blasphemy laws as well as Sunday closing laws. But what did the phrase mean, and when did it go out of usage, and why?

In a superb article, When Christianity Was Part of the Common Law, Professor Stuart Banner explores the use and the decline of the maxim. It seems to have been used relatively frequently in judicial decisions of the 19th century, far less frequently in the early 20th, and by mid-century have gone out of usage entirely. Indeed, the last use of the maxim that Banner records is in a 1955 Pennsylvania state court decision that I assign my students in criminal law–Commonwealth v. Mochan–involving a prosecution for “persistent, lewd, immoral, and filthy” phone calls. Banner concludes that the maxim had almost no tangible legal effect on the substance of the 19th century blasphemy and Sunday closing law prosecutions. Those cases were about disturbing the peace in general, not about specific injuries done to Christianity that the law could remedy.

Does this mean that the maxim was functionally useless. Not at all. The maxim did not go to the substance of law, but to its nature. And the fact that the maxim falls out of use in the early twentieth century has as much or more to do with our changing conception of the common law as it does with our changing views about religion. The common law in the older view had an existence independent of the particular statements of judges: it was founded on sources much broader than the positive commands of authorized government functionaries. Those sources, which included Christian sources, sacralized the common law; they rendered it greater and deeper than positive law. One can see this view in a nineteenth century Pennsylvania blasphemy case, Updegraph v. Commonwealth, in which the court said of the common law: “It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law.”

What Edmund Burke saw as the political, legal, and constitutional value of establishment is quite similar to the functions that the maxim served in 19th century America. These both were ways in which law was sacralized. The idea was to remind officials that they are subject to a greater power, and that this greater power is founded on and drawn from sources of transcendence outside the law (see also Town of Greece v. Galloway, as I explained here). In the context of the exercise of judicial power, the sacralizing function of the maxim was to reject the claim that judicial will is all that exists. Just as, in Burke’s view, disestablishment destroys the sacralizing power of law, so, too, does the rejection of the maxim desacralize law in the American experience. Here is Banner:

Where the common law has this sort of existence independent of the statements of judges, it can include systems of thought otherwise external to the legal system without causing any tension. If the common law can be found in our architecture, in our dreams, in our manner of speech—and especially in our prerational judgments as to right and wrong—then there is nothing mystical about the notion that the common law incorporates Christianity.

This view of the common law simply died out. We no longer believe that judges discover the common law. We believe that they, and they alone, make it. When judges render a decision, that decision is not–as the old view had it–”the best evidence of the common law” but not itself the common law. The common law just is the judicial will. If judges recognize the doctrines of Christianity as part of the common law, they are making Christianity the law. That is exactly a reason that the maxim would raise Establishment Clause complaints today where in the past it would raise none.

And yet I wonder what fills the void in place of the sacralizing meta-doctrine that Christianity is part of the common law. There are two possibilities. The first is that the modern state is no longer in need of sacralization or consecration at all. We just know better today. This seems to be the view taken by Banner at the conclusion of his piece.

But a second possibility is very different. It posits that all states—and certainly all modern states whose ambit of power is large and ever-increasing—depend on sacralizing credos and maxims. If the maxim that Christianity is part of the common law is dead, other credos reflected in new maxims inevitably must take its place. No state, and especially no state whose jurisdiction is expanding into realms traditionally overseen by other social powers—can long survive without the consecration of its law.

Hamilton’s Religion, and Ours

A Complicated Man

This past weekend was the 210th anniversary of the death of Alexander Hamilton in a duel with Aaron Burr. Commemorations took place around New York City–at the Weehawken, New Jersey dueling site; at Hamilton’s home in upper Manhattan, recently restored and relocated in St. Nicholas Park; and at the Morris-Jumel Mansion, where Burr, who somehow survived the scandal, later married his wealthy second wife. Commemorations conclude this afternoon with a ceremony at Hamilton’s grave in Trinity Churchyard.

Hamilton was a complicated man–brilliant, handsome, charming, visionary; but also reckless, prideful, and a schemer. He had remarkable achievements. He attended the Constitutional Convention and wrote most of the Federalist Papers, including Number 78, on the judiciary; he established the finances of the United States as first Secretary of the Treasury; he founded a nationalist, commercial conservatism that survives to this day. Although this is somewhat less known, he also wrote one of the most important texts on the place of religion in American public life.

Most people know the story of his duel with Burr, the sitting Vice President, which took place on the morning of July 11, 1804. Burr challenged Hamilton after reading some disparaging remarks Hamilton allegedly had made about him during a gubernatorial election. Hamilton could have avoided the duel, had he wanted. But he chose not to, inflaming the situation with his lawerly, evasive answers to Burr’s questions. He told friends before the duel that he did not intend to shoot Burr, and indeed his bullet that morning drifted harmlessly into the trees. Perhaps he expected Burr to act the same way. Duels often ended with both parties wasting their shots.

Some historians believe, though, that Hamilton no longer cared much about living. He was approaching 50 and his political career was over, largely as a result of his own unsuccessful machinations. “Every day proves to me more and more,” he wrote Gouverneur Morris in 1802, “that this American world was not made for me.” He was heavily in debt. And he was shattered by the death of his son, Philip, in a duel two years before–defending his father’s honor, at that same Weehawken dueling ground, with the very pistols Hamilton selected for his own duel with Burr. Did Hamilton court death that July morning? Who knows? In any event, Burr shot to kill and hit his target. Hamilton lingered for a while in agony and died, back in New York, the next day.

But about Hamilton and American religion. Even after he left the Cabinet in 1795, Hamilton continued to advise President George Washington, who was a father figure to him. As Washington’s retirement neared in 1796, he asked Hamilton for help with his Farewell Address, and Hamilton prepared a draft. The ideas were Washington’s own. But the words were Hamilton’s.

One famous section of the Farewell Address relates to the proper place of religion in public life:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

How very American this is. Note the generic reference to “religion,” as opposed to Christianity. From the beginning, American public religion has had a non-sectarian cast. Most Americans in 1796 were Christians, as most are today. Most would have understood the reference to religion to mean the Christian religion. But our public expression of religion typically avoids expressly Christian imagery. In part this reflects the Deism of many of the Founders. But it also reflects an Evangelical faith that is comfortable with biblical non-sectarianism. In America, religious conservatives demand public display of the Ten Commandments. In Europe, they demand public display of the crucifix.

Note, too, the practicality of Hamilton’s appeal. Why is religion important? Because it’s true? Because people need salvation? No–it’s because of the pragmatic benefits religion provides, benefits even the “mere politician” can understand. To work properly, republicanism requires citizens to be moral; and to be moral, citizens require religion. To be sure, every now and then, one might find an exceptional person who is moral without religion. But that can never be true for most people. And it doesn’t matter what the religion is. This, too, is very American. As a twentieth-century American president famously remarked, “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”

640px-Alexander_Hamilton_Grave

Hamilton’s Grave, Trinity Churchyard

Hamilton’s own faith ebbed and flowed. As a young man, he was a pious Christian. His college roommate remembers him praying every morning and evening. But he leaned toward Deism as he matured. Indeed, he appears to have been a bit of a scoffer. When someone asked him why the Constitution failed to mention God, he famously joked, “We forgot.” Later in life, though, he appears to have returned to his boyhood Christianity, dismayed, as many American conservatives were, by the anti-Christianity of the French Revolution. Two years before he died, he proposed a Christian Constitutional Society to counter Jacobinism in the United States. Perhaps he was thinking as a “mere politician.” But on his deathbed, he requested, and received, Communion.

Lupu & Tuttle, “Secular Government, Religious People”

The long partnership of Ira “Chip” Lupu and Robert Tuttle (both of GW Law) has resulted in a Secular Government Religious Peopledistinctive view of and approach to religious freedom in the United States through the years, and so I will be very interested to read the product of their latest collaboration, Secular Government, Religious People, to be published by Eerdmans Publishing Company in August. The publisher’s description follows.

In this book Ira Lupu and Robert Tuttle break through the unproductive American debate over competing religious rights. They present an original theory that makes the secular character of the American government, rather than a set of individual rights, the centerpiece of religious liberty in the United States.

Through a comprehensive treatment of relevant constitutional themes and through their attention to both historical concerns and contemporary controversies — including issues often in the news — Lupu and Tuttle define and defend the secular character of U.S. government.

“Religion and Inequality in America” (Keister & Sherkat eds.)

Next month, Cambridge University Press will release Religion and Inequality in America: Research and Theory on Religion’s Role in Stratification, edited by Lisa A. Keister (Duke University) and Darren E. Sherkat (Southern Illinois University). The publisher’s description follows:

Religion is one of the strongest and most persistent correlates of social and economic inequalities. Theoretical progress in the study of stratification and inequality has provided the foundation for asking relevant questions, and modern data and analytic methods enable researchers to test their ideas in ways that eluded their predecessors. A rapidly growing body of research provides strong evidence that religious affiliation and beliefs affect many components of well-being, such as education, income, and wealth. Despite the growing quantity and quality of research connecting religion to inequality, no single volume to date brings together key figures to discuss various components of this process. This volume aims to fill this gap with contributions from top scholars in the fields of religion and sociology. The essays in this volume provide important new details about how and why religion and inequality are related by focusing on new indicators of inequality and well-being, combining and studying mediating factors in new and informative ways, focusing on critical and often understudied groups, and exploring the changing relationship between religion and inequality over time.

Nelson, “The Royalist Revolution: Monarchy and the American Founding”

Here’s one I will be sure to pick up–Eric Nelson’s (Harvard University) The The Royalist RevolutionRoyalist Revolution: Monarchy and the American Founding published by Harvard University Press later this year. Perhaps not straight down the law and religion fairway, but this fascinating looking book may shed a little ambient light on such issues as the framers’  intent as to the meaning of the religion clauses. The publisher’s description follows.

Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our “founding fathers” saw themselves as rebels against the British Parliament, not the Crown. The Royalist Revolution interprets the patriot campaign of the 1770s as an insurrection in favor of royal power—driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.

Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority—John Adams, Alexander Hamilton, James Wilson, and their allies—returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings.

Bean, “The Politics of Evangelical Identity: Local Churches and Partisan Divides in the United States and Canada”

This August, Princeton University Press will publish The Politics of Evangelical Identity: Local Churches and Partisan Divides in the United States and Canada by Lydia Bean (Baylor University). The publisher’s description follows.bookjacket

It is now a common refrain among liberals that Christian Right pastors and television pundits have hijacked evangelical Christianity for partisan gain. The Politics of Evangelical Identity challenges this notion, arguing that the hijacking metaphor paints a fundamentally distorted picture of how evangelical churches have become politicized. The book reveals how the powerful coalition between evangelicals and the Republican Party is not merely a creation of political elites who have framed conservative issues in religious language, but is anchored in the lives of local congregations.

Drawing on her groundbreaking research at evangelical churches near the U.S. border with Canada–two in Buffalo, New York, and two in Hamilton, Ontario–Lydia Bean compares how American and Canadian evangelicals talk about politics in congregational settings. While Canadian evangelicals share the same theology and conservative moral attitudes as their American counterparts, their politics are quite different. On the U.S. side of the border, political conservatism is woven into the very fabric of everyday religious practice. Bean shows how subtle partisan cues emerge in small group interactions as members define how “we Christians” should relate to others in the broader civic arena, while liberals are cast in the role of adversaries. She explains how the most explicit partisan cues come not from clergy but rather from lay opinion leaders who help their less politically engaged peers to link evangelical identity to conservative politics.

The Politics of Evangelical Identity demonstrates how deep the ties remain between political conservatism and evangelical Christianity in America.

Sherkat, “Changing Faith: The Dynamics and Consequences of Americans’ Shifting Religious Identities”

This August, NYU Press will publish Changing Faith: The Dynamics and Consequences of Americans’ Shifting Religious Identities by Darren Sherkat (Southern Illinois University). The publisher’s description follows.

More than anywhere else in the Western world, religious attachments in America are quite flexible, with over 40 percent of U.S. citizens shifting their religious identification at least once in their lives. In Changing Faith, Darren E. Sherkat draws on empirical data from large-scale national studies to provide a comprehensive portrait of religious change and its consequences in the United States.
With analysis spanning across generations and ethnic groups, the volume traces the evolution of the experience of Protestantism and Catholicism in the United States, the dramatic growth of Hinduism, Buddhism, and Islam, and the rise of non-identification, now the second most common religious affiliation in the country. Drawing on that wealth of data, it details the impact of religious commitments on broad arenas of American social life, including family and sexuality, economic well-being, political commitments, and social values.
Exploring religious change among those of European heritage as well as of Eastern and Western European immigrants, African Americans, Asians, Latin Americans, and Native Americans, Changing Faith not only provides a comprehensive and ethnically inclusive demographic overview of the juncture between religion and ethnicity within both the private and public sphere, but also brings empirical analysis back to the sociology of religion.

Olivier Roy on “The Closing of the Right’s Mind”

The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:

The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.

Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).

The changes brought on by the decades that followed–in which rights and values of sexual autonomy came to dominate the scene–were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.

The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian–”spiritually” Christian–but for political reasons, principally for the purpose of resisting a growing Islam in Europe.

The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.

Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”

Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state–a distinctively American conception of that relationship principally (though not exclusively) embraced today by the political left in this country–strict separationism. Its influence in American law, however, has been steadily declining–there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.