Posted on by Marc O. DeGirolami

Does Banning Religious Texts in Public Schools Violate the Establishment Clause?

An interesting case out of the 9th Circuit back in August, Nampa Classical Academy et al. v. Goesling (the panel consisting of Judges Reinhardt, W. Fletcher, and Rawlinson, who concurred only in the result), in which an Idaho Public School Commission adopted a policy banning  outright the use of public funds to purchase all “sectarian and denominational texts” for instructional use in public school classrooms.  Apparently there is a provision of the Idaho constitution which provides, in relevant part, as follows:

No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.

The provision seems to me to be talking about proselytism in public schools; otherwise, it would really and truly mean that no “political” books or documents could be used in public school education, a rather perplexing position — ‘no U.S. Constitution in public schools!’  But I guess the Idaho school commission came up with a different interpretation.  There are speech claims and other standing issues involved here which knocked the case out, but what about the religion clause issue?  The policy may be rather knuckle-headed, but does it violate the Establishment Clause? 

ADDENDUM: I suppose somebody might think that including religious texts as part of secular instruction would itself violate the Establishment Clause.  Indeed, it appears that the district court thought this very thing: “If the Defendants allowed the Plaintiffs’ proposed curriculum, they would be in violation of the Establishment Clause.”  Nampa Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1093 (D. Idaho 2010).  That a school commission or school district would think this is regrettable, but these are not legal bodies and so the misunderstanding is not too surprising.  But that a district court could be this completely wrong about the law is mystifying.  In no way is it improper for a public school to include religious texts in the regular curriculum.  That’s been true historically since the founding of the country, and it was stated explicitly in Abington v. Schempp by Justice Clark.  What a strange mistake.

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Posted on by Marc O. DeGirolami · 1 Comment

Hart on the Future of Religion in America

A very rich essay by the Eastern Orthodox theologian David Bentley Hart in The New Criterion.  Some of the reflections on the differences between the United States and France are well worth thinking about, but do read the whole thing.  Here’s a bit:

A civilization’s values, symbols, ideals, and imaginative capacities flow down from above, from the most exalted objects of its transcendental desires, and a people’s greatest collective achievements are always in some sense attempts to translate eternal into temporal order. This will always be especially obvious in places of worship. To wax vaguely Heideggerean, temples are built to summon the gods, but only because the gods have first called out to mortals. There are invisible powers (whether truly divine powers or only powers of the imagination) that seek to become manifest, to emerge from their invisibility, and they can do this only by inspiring human beings to wrest beautiful forms out of intractable elements. They disclose their unseen world by transforming this world into its concrete image, allegory, or reflection, in a few privileged places where divine and human gazes briefly meet.

Such places, moreover, are only the most concentrated crystallizations of a culture’s highest visions of the good, true, and beautiful; they are not isolated retreats, set apart from the society around them, but are rather the most intense expressions of that society’s rational and poetic capacities. And it is under the shelter of the heavens made visible in such places that all of a people’s laws and institutions, admirable or defective, take shape, as well as all its arts, civic or private, sacred or profane, festal or ordinary. This is a claim not about private beliefs, or about the particular motives that may have led to any particular law or work of art, but about the conceptual and aesthetic resources that any culture can possess or impart, and those are determined by religious traditions—by shared pictures of eternity, shared stories of the absolute. That is why the very concept of a secular civilization is nearly meaningless.

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Posted on by Mark Movsesian

Same Name, Different Case

American law and religion scholars know the case of St. Nicholas Cathedral, a Supreme Court decision from the 1950s, about which Rick Garnett has  written recently. Briefly, the case involved a dispute over a Russian Orthodox cathedral in New York between two parish councils, one loyal to the Moscow Patriarchate and the other loyal to the Russian Orthodox Church Outside Russia (ROCOR), a group that broke away from the Communist-dominated Patriarchate in the twentieth century. It turns out that a similar dispute has been making its way through the French courts. Since the fall of Communism, the Moscow Patriarchate and ROCOR have reestablished communion, and the Patriarchate has been reasserting its right to church properties around the world, including St. Nicholas Cathedral in Nice (above), an impressive, onion-domed structure, reputedly the largest Orthodox cathedral in Western Europe. The local parish council objected to returning St. Nicholas to Moscow and a six-year legal battle ensued. The battle ended last week, when the local council sadly turned over the keys to the Patriarch’s representative. The story is here, from a local paper (in French).

Posted on by Mark Movsesian · 1 Comment

Lemert, “Why Niebuhr Matters”

From Charles Lemert (Wesleyan/Yale), an overview of the career of 20th Century Protestant  theologian and public intellectual Reinhold Niebuhr, Why Niebuhr Matters (Yale 2011). Niebuhr has been much in the news lately as the inspiration for liberal realism in contemporary American politics; Barack Obama, among others, has acknowledged his debt to him. Niebuhr has also been the subject of other recent books, including one CLR Forum has noted. The publisher’s description follows.

Reinhold Niebuhr (1892–1971) was a Protestant preacher, an influential religious thinker, and an important moral guide in mid-twentieth-century America. But what does he have to say to us now? In what way does he inform the thinking of political leaders and commentators from Barack Obama and Madeleine Albright to David Brooks and Walter Russell Mead, all of whom acknowledge his influence? In this lively overview of Niebuhr’s career, Charles Lemert analyzes why interest in Niebuhr is rising and how Niebuhr provides the answers we ache for in the face of seismic shifts in the global order.

In the middle of the twentieth century, having outgrown a theological liberalism, Niebuhr challenged and rethought the nonsocialist Left in American politics. He developed a political realism that refused to sacrifice ideals to mere pragmatism, or politics to bitterness and greed. He examined the problem of morality in an immoral society and reimagined the balance between rights and freedom for the individual and social justice for the many. With brevity and deep insight, Lemert shows how Niebuhr’s ideas illuminate our most difficult questions today.