Goodman, “Banished: Common Law and the Rhetoric of Social Exclusion in Early New England”

This July, University of Pennsylvania Press published Banished: Common Law and the Rhetoric of Social Exclusion in Early New England by Nan Goodman (University of Colorado). The publisher’s description follows.

 A community is defined not only by inclusion but also by exclusion. Seventeenth-century New England Puritans, themselves exiled from one society, ruthlessly invoked the law of banishment from another: over time, hundreds of people were forcibly excluded from this developing but sparsely settled colony. Nan Goodman suggests that the methods of banishment rivaled—even overpowered—contractual and constitutional methods of inclusion as the means of defining people and place. The law and rhetoric that enacted the exclusion of certain parties, she contends, had the inverse effect of strengthening the connections and collective identity of those that remained.

Banished investigates the practices of social exclusion and its implications through the lens of the period’s common law. For Goodman, common law is a site of negotiation where the concepts of community and territory are more fluid and elastic than has previously been assumed for Puritan society. Her legal history brings fresh insight to well-known as well as more obscure banishment cases, including those of Anne Hutchinson, Roger Williams, Thomas Morton, the Quakers, and the Indians banished to Deer Island during King Philip’s War. Many of these cases were driven less by the religious violations that may have triggered them than by the establishment of rules for membership in a civil society. Law provided a language for the Puritans to know and say who they were—and who they were not.Banished reveals the Puritans’ previously neglected investment in the legal rhetoric that continues to shape our understanding of borders, boundaries, and social exclusion.

Shiffrin, “The Religious Left and Church-State Relations”

This August, Princeton University Press will publish a paperback edition of The Religious Left and Church-State Relations by Steven H. Shiffrin (Cornell Law School). The cloth edition was published in 2009. The publisher’s description follows and  a book review by the Center’s own Assistant Director Marc O. DeGirolami can be found here.

In The Religious Left and Church-State Relations, noted constitutional law scholar Steven Shiffrin argues that the religious left, not the secular left, is best equipped to lead the battle against the religious right on questions of church and state in America today. Explaining that the chosen rhetoric of secular liberals is poorly equipped to argue against religious conservatives, Shiffrin shows that all progressives, religious and secular, must appeal to broader values promoting religious liberty. He demonstrates that the separation of church and state serves to protect religions from political manipulation while tight connections between church and state compromise the integrity of religious institutions.

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The “Nones” in America: An Interactive Map and a Conjecture

CLR Forum reader Robin Charlow sends along a fascinating interactive map (a few years old, now, but still), that shows the distribution of religious affiliations across the United States, including the new, possibly growing category of the “unaffiliated,” also known as the “nones.” The “unaffiliated” seem disproportionately represented  in two corners: the Pacific Northwest and New England (except for Massachusetts, where the percentage, 17%, is close to the national number). Why should that be? Here’s a thought. New England Protestant missionaries like the Whitmans were very influential in the settlement of the Pacific Northwest in the 19th Century. It wouldn’t be surprising if the missionaries created a religious culture that, thousands of miles away, resembled what they had left behind and continued to evolve in a similar way. Is Oregon the westernmost legacy of the Puritans? Could be.

District Court Dismisses Muslims’ Suit Against FBI Under State Secrets Doctrine

A federal district court in California ruled Tuesday that the state secrets doctrine precludes a religious-discrimination lawsuit local Muslims had filed against the FBI. Plaintiffs alleged that the FBI had violated their constitutional and civil rights by conducting “an indiscriminate ‘dragnet'” that “gathered information about them and other innocent Muslim Americans in Southern California” solely on the basis of their religion. Specifically, they alleged that the FBI had employed a covert operative to conduct surveillance of mosques and Muslims in southern California. The court ruled that litigation of plaintiffs’ claims would “require or unjustifiably risk disclosure of secret and classified information regarding the nature of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies.” The court made its decision, with obvious reluctance, on the  basis of Attorney General Eric Holder’s formal invocation of the state secrets privilege and the court’s own “skeptical” examination of the FBI’s public and classified, ex parte, submissions. Plaintiffs, represented by the ACLU, plan to appeal. The case is Fazaga v. FBI, 2012 WL 3327092 (C.D. Cal., Aug. 14, 2012).

Eleventh Circuit Remands Ten Commandmants Case on Standing Grounds

The U.S. Court of Appeals for the Eleventh Circuit has remanded a case to the district court involving a 5-foot-tall monument of the Ten Commandments which sits beside an entrance to the Dixie County Courthouse in Florida.  The plaintiff, a North Carolina resident who was considering whether to purchase property in the County, made his way to the Courthouse and saw the monument.  As the Eleventh Circuit put it, “the experience of seeing the statue was a negative one” (though after the shock had passed, he was able to recover and proceed with his business).

The plaintiff never did purchase any land in the County, but the ACLU used him in an attempt to get itself standing to sue the County for violating the Establishment Clause.  Standing demands a concrete injury.  When deposed, the plaintiff indicated that the reason he did not purchase property in the County was due to “the display of the monument” and because “I found other things I was offended by.”  A later affidavit by the plaintiff indicates instead that the monument was the but-for cause of his decision not to purchase property.  The district court denied a motion for summary judgment by the County on the issue of standing, and granted the ACLU’s motion for summary judgment on the merits.

For the Eleventh Circuit, the issue seems to be whether the plaintiff had standing to sue, and the remand has to do with an evidentiary question about the reasons for the plaintiff’s decision not to purchase property in the County.  The initial deposition and later affidavit seem to be in some tension (the Court called the affidavit “suspect, given that it seems designed to strengthen [plaintiff’s] standing claim”).  By granting the ACLU’s summary judgment motion, the district court improperly resolved a disputed factual question.

Judge Edmonson filed a separate opinion concurring in part and dissenting in part, arguing that the case should be dismissed now because plaintiff has failed to meet the standing requirement.  He would have relied on the “clear and unambiguous answers” in the deposition, not the later prepared affidavit, to dismiss the case.  Judge Edmonson notes that the “other things” that offended the plaintiff (as stated in the deposition) included: (1) a cartoon in the County assessor’s office depicting an American soldier telling a French official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2) a writing in the assessor’s office that said something like “the only two who gave blood for you or gave their souls for you were Jesus and the veterans”; and (3) a website that included the words “Patriot Properties” and “Dixie” in its web address, which an employee in the assessor’s office recommended that plaintiff visit if he had more questions.  Plaintiff also stated that he was discomfited by the fact that the locals were “a bit cold.”

The case is ACLU of Florida, Inc. v. Dixie County, Florida (August 15, 2012).