Hollinger, “After Cloven Tongues of Fire”

Princeton University Press has published After Cloven Tongues of Fire: Protestant Liberalism in Modern American History (2013) a collection of essays by Berkeley historian David A. Hollinger. The publisher’s description follows:

The role of liberalized, ecumenical Protestantism in American history has too often been obscured by the more flamboyant and orthodox versions of the faith that oppose evolution, embrace narrow conceptions of family values, and continue to insist that the United States should be understood as a Christian nation. In this book, one of our preeminent scholars of American intellectual history examines how liberal Protestant thinkers struggled to embrace modernity, even at the cost of yielding much of the symbolic capital of Christianity to more conservative, evangelical communities of faith.

If religion is not simply a private concern, but a potential basis for public policy and a national culture, does this mean that religious ideas can be subject to the same kind of robust public debate normally given to ideas about race, gender, and the economy? Or is there something special about religious ideas that invites a suspension of critical discussion? These essays, collected here for the first time, demonstrate that the critical discussion of religious ideas has been central to the process by which Protestantism has been liberalized throughout the history of the United States, and shed light on the complex relationship between religion and politics in contemporary American life.

After Cloven Tongues of Fire brings together in one volume David Hollinger’s most influential writings on ecumenical Protestantism. The book features an informative preface as well as concise introductions to each essay.

Siddiqui, “Christians, Muslims, & Jesus”

Next month, Yale University Press will publish Christians, Muslims, & Jesus, by Edinburgh University Professor Mona Siddiqui. The publisher’s description follows:

Prophet or messiah, the figure of Jesus serves as both the bridge and the barrier between Christianity and Islam. In this accessible and thoughtful book, Muslim scholar and popular commentator Mona Siddiqui takes her reader on a personal, theological journey exploring the centrality of Jesus in Christian-Muslim relations. Christian and Muslim scholars have used Jesus and Christological themes for polemical and dialogical conversations from the earliest days to modern times. The author concludes with her own reflections on the cross and its possible meaning in her Muslim faith.  Through a careful analysis of selected works by major Christian and Muslim theologians during the formative, medieval, and modern periods of both religions, Siddiqui focuses on themes including revelation, prophecy, salvation, redemption, sin, eschatology, law, and love. How did some doctrines become the defining characteristics of one faith and not the other? What is the nature of the theological chasm between Christianity and Islam? With a nuanced and carefully considered analysis of critical doctrines the author provides a refreshingly honest counterpoint to contemporary polemical arguments and makes a compelling contribution to reasoned interfaith conversation.

The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [274 downloads]

2. For-Profit Corporations, Free Exercise, and the HHS Mandate  by
Scott Gaylord (Elon U. School of Law) [142 downloads]

3. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [139 downloads]

4. Policing Terrorists in the Community by Sahar F. Aziz (Texas Wesleyan U. School of Law) [132 downloads]

5. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [76 downloads]

Are Evangelicals Underrepresented Among the Legal Elite?

When Elena Kagan joined the Supreme Court in 2010, there was ample chatter about the fact that there were no longer any Protestant justices on the Court.  With six Catholics and three Jews, the Court stood in stark contrast to the bare majority of the country that affiliates as Protestant.  Supreme Court appointments are few in number and idiosyncratic, but there’s a broader religious demographic phenomenon that’s harder to explain away as random:  the underrepresentation of evangelical Protestants among the American legal elite.

First, some definitions and boundaries.  The gold standard for religious affiliation in the United States is the Pew Forum on Religion & Public Life.  Using their affiliation categories, here are the breakdowns for the largest religious demographic groups in the U.S.:  evangelical Protestant 26%; mainline Protestant 18%; Catholic 24%; historically black church (which would include evangelical and non-evangelical Protestants) 7%; Jewish and Mormon 1.7%; unaffiliated 16%.   By “legal elite,” I refer to something with looser boundaries, but still recognizable.  Roughly, it would include elite federal judges (Supreme Court and the most prestigious federal circuits); top legal jobs in the executive branch (Solicitor General’s office, White House counsel, etc.); law professors at top-ranked law schools; and various talent pools that feed into the upper echelon of legal jobs (i.e., student bodies at elite law schools; Supreme Court clerkships).

My strong intuition is that evangelicals are grossly underrepresented in the legal elite.  To focus again on the (admittedly idiosyncratic) Supreme Court, it’s not just that there are currently no Protestants on the court, it’s that at least since the rise of modern evangelicalism as a political force in 1970s, there has never been an evangelical on the Court.  Even though evangelicals have had great success in politics writ large, including the Presidency, Congress, and governorships, they have been conspicuously absent from the top echelons of the federal judiciary.

It’s a good bet that that this underrepresentation stretches back to the beginning of the elite pipeline that feeds the elite echelons.  While I’m unaware of any good data on the religious affiliation of law students at elite law schools, my own experience suggests that evangelicals fall far short of their national demographic numbers in elite law school enrollment.  Several years ago, David Skeel, Larissa Vaysman, and I conducted an online survey of the religious affiliation of first-year students at a top ten law school (a project we are hoping to continue elsewhere).  The 57% of the students who responded provided the following data.  Evangelical Protestants comprised merely 7%, compared to the national figure of 26%, while mainline Protestants and Catholics largely maintained their national shares (16% for mainline Protestant compared to 18% nationally, 20% for Catholics compared to 24% nationally).  Caveat:  this was just one survey and there are all sorts of statistical problems with extrapolating from voluntary online surveys, so take this for what it’s worth.  Still, this snapshot resonated with my intuitions about law school enrollments.  And it would be very surprising if evangelical Protestants amounted to even 5% of the law professors at the top law schools.

Let me be clear that I’m not starting out to tell a bias or victimization story.  The enormous disparity between national demographics and the legal elite (if my intuitions and fuzzy data points are right) could have many different and complicated explanations.  Nor am I necessarily taking a position on the normative implications of evangelical underrepresentation.  For purposes of this post, I just want to make the empirical point, such as it is.  In future posts I will offer some observations on possible explanatory stories and the normative dimensions, if any.

Religion and the Yasukuni Shrine Controversy

At Via Meadia, Walter Russell Mead has been doing a great job covering the controversy surrounding visits last week by top Japanese officials to the Yasukuni Shrine in Tokyo. Yasukuni is a Shinto shrine; in Shinto belief, it houses the souls of millions of people who died in the service of the Japanese Empire, including during World War II. Among the millions commemorated are approximately 1000 convicted war criminals, including wartime Prime Minister Hideki Tojo.

Japan’s neighbors, China and Korea, perceive official visits to the shrine as an outrageous insult and a sign that Japan has not fully repudiated the imperialism of its past. (In response to last week’s visits, China sent a fleet of patrol ships into Japanese territorial waters.) The latest controversy erupted when top officials in Prime Minister Shinzo Abe’s cabinet, as well more than 150 parliamentarians, visited the shrine for the annual Shinto Spring Ceremony–the largest official delegation in decades. In response to Chinese and Korean complaints, Abe doubled down, declaring in a parliamentary debate, “It’s only natural to honor the spirits of those who gave their lives for the country. Our ministers will not cave in to any threats.” Abe doubtless feels buoyed by opinion polls showing that he has a 70% approval rating from the Japanese public.

Official participation in ceremonies at Yasukuni have been controversial inside Japan as well. The Japanese Constitution, adopted after the war, disestablished Shintoism and effected, in the words of the Japanese Supreme Court, the “separation of state and religion.” In fact, in 1997 the Supreme Court ruled that the government officials could not make financial contributions to Yasukuni for use in Shinto ceremonies. With respect to this month’s visits, the officials involved were careful to point out that they were participating only as private citizens, not government officials, but that explanation has not satisfied critics. “”It doesn’t matter how or in what role Japanese leaders visit the Yasukuni shrine,” a Chinese spokesman said. “We feel it is in essence a denial of Japan’s history of militarist invasion.” And Japanese legal scholar Keisuke Abe (no relation to the Prime Minister, I believe) argues in a symposium in the St. John’s Law Review that most Japanese wouldn’t recognize the distinction, either. “Whatever the purpose of” a visit to the shrine, he writes, “the general public is likely to consider it as the government giving special support to Shintoism, associated with ancestor worship.”

John Locke’s Constitution for the Carolinas (1669): Thoughts on “Churches”

John Locke drafted a constitution for the Carolinas in 1669, entitled, “The Fundamental Constitutions of Carolina.”  His draft was never ratified, but here are some provisions relating to “churches” which may be of some interest, in light of the resurgence of scholarship involving the liberty of the church:

Ninety-seven. But since the natives of that place, who will be concerned in our plantation, are utterly strangers to Christianity, whose idolatry, ignorance, or mistake gives us no right to expel or use them ill; and those who remove from other parts to plant there will unavoidably be of different opinions concerning matters of religion, the liberty whereof they will expect to have allowed them, and it will not be reasonable for us, on this account, to keep them out, that civil peace may be maintained amidst diversity of opinions, and our agreement and compact with all men may be duly and faithfully observed; the violation whereof, upon what presence soever, cannot be without great offence to Almighty God, and great scandal to the true religion which we profess; and also that Jews, heathens, and other dissenters from the purity of Christian religion may not be scared and kept at a distance from it, but, by having an opportunity of acquainting themselves with the truth and reasonableness of its doctrines, and the peaceableness and inoffensiveness of its professors, may, by good usage and persuasion, and all those convincing methods of gentleness and meekness, suitable to the rules and design of the gospel, be won ever to embrace and unfeignedly receive the truth; therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.


One hundred. In the terms of communion of every church or profession, these following shall be three; without which no agreement or assembly of men, upon presence of religion, shall be accounted a church or profession within these rules:

1st. “That there is a God.”

II. “That God is publicly to be worshipped.”

III. “That it is lawful and the duty of every man, being thereunto called by those that govern, to bear witness to truth; and that every church or profession shall, in their terms of communion, set down the external way whereby they witness a truth as in the presence of God, whether it be by laying hands on or kissing the bible, as in the Church of England, or by holding up the hand, or any other sensible way.”

Some thoughts on the language about “churches” and what constitutes them:

1. Locke seems to want to be generous for, among other reasons (some religious), the strategic reason of conversion.  He recognizes that the many “strangers” to Christianity will expect religious liberty, and maintenance of civic peace demands that they have it, but “by good usage and persuasion” these people are hopefully to be converted.  All of this is familiar from the Letter Concerning Toleration, but what really interested me was the final line of section 97: “therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.”  Notice Locke’s emphasis on, to use a legal term, numerosity!  What constitutes a “church” is in part a numerical characteristic.  You cannot be a “church” under Locke’s constitution with less than seven members.  This numerical feature highlights the sociality of an ecclesial structure.  And we continue to struggle with it today (compare, e.g., Psychic Sophie and related controversies).

2.  But there are also substantive characteristics that must be satisfied.  Belief in God, of course, but notice the public quality of the other two elements!  You cannot be a church unless you worship God “publicly.”  And there must be official rules for that public worship–the church must promulgate rules which “set down the external way” in which  church members will witness the truth as they apprehend it.  The emphasis on these external, public, ritualistic functions of churches–and therefore, in part, on the public functions that they serve, the ‘civil religion’ function–is perhaps not quite so common today but it is still present.

USCIRF Report on Religious Freedom in Syria

Last week, the US Commission on International Religious Freedom issued a report, Protecting and Promoting Religious Freedom in Syria, that describes the religious contours of Syria’s civil war and makes recommendations for US policy with respect to the conflict. The report accuses both the Assad regime and the opposition of sectarian violence. The regime, the report says, has targeted Sunni Muslims, while Islamists in the opposition have targeted Alawites and Christians. Indeed, the report accuses the regime of deliberately setting religious communities against one another as a way of maintaining control.

Exploiting religious tensions in Syria is not too difficult. Although Sunni Muslims, Christians, and Alawites historically have lived in peace under Ba’ath rule, tensions always have existed beneath the surface. The Assads, who are Alawites, have kept the country’s Sunni majority in check, and Sunnis deeply resent it. I remember a Christian friend who grew up in Syria once telling me that his Sunni classmates had a slogan, which apparently rhymes in Arabic, about their proposal for Syria’s future:  “The Christians to Beirut and the Alawites to the grave.” The report says that the regime is now paying people to pose as opposition figures  and chant that slogan at pr0tests, in order to frighten minority communities into supporting Assad.

The regime probably doesn’t have to work too hard to get that support. Just looking at the numbers, and knowing the fault lines in Syrian society, it’s obvious that minority groups like Christians have much to lose if Assad falls. The report suggests as much:

Many minority religious communities have tried to stay neutral in the
conflict, but opposition forces increasingly see their non-alignment, or perceived non-alignment, as support for the al-Assad regime. Minority religious communities thus have been forced by circumstances to take a position either in favor of the al-Assad regime, which historically
provided them some religious freedom protections, or in favor of the uncertainties of the opposition. As these sectarian fissures deepen, it is increasingly likely that religious communities will be targeted not for their political allegiances, but solely for their religious affiliation. . . .

[I]t is clear that sectarianism is increasing and religiously-motivated attacks are being perpetrated by the al-Assad regime and its proxies, as well as at times by opposition forces seeking his overthrow, resulting in severe violations of religious freedom. These violations also threaten Syria’s religious diversity by increasing the likelihood of religiously-motivated violence and retaliation continuing in a post-al-Assad Syria, where religious minorities will be particularly vulnerable.

Three commissioners dissented from the report, arguing that its policy recommendations go beyond the commission’s mandate. In other Syria news, the two Orthodox bishops kidnapped at gunpoint last week, presumably by opposition forces, remain missing.

Garvey on Endorsement, Graduation Speakers, and Student Groups

Here is a thoughtful, extended comment by my friend and Catholic University of America President John Garvey on an issue with special salience at around this time of year–graduation speakers.  John uses the occasion to offer some broader thoughts on the concept of “endorsement,” which has been so important to the Supreme Court’s Establishment Clause jurisprudence.  In particular, he considers the question of the “public meaning” of an official act by a university–whether of a religiously affiliated university conferring an honorary degree on a public figure, some of whose views the school holds as anathema, or of a public university refusing to grant recognized status to a student group whose views it holds as anathema (e.g., the situation in CLS v. Martinez).  I was happy to see that John raised and discussed two documents that we read together in my Catholic Social Thought and the Law class, Ex Corde Ecclesiae and the United States Conference of Catholic Bishops’ Catholics in Political Life.

The piece is also very much in tune with the arguments from institutional pluralism that John advanced to great effect a few years ago as AALS President.  You should sit down with a cup of tea and enjoy the whole piece.  Here is a selection:

When a school stages a commencement program, it is a participant in the free market of ideas. Institutions can participate in that market just as individuals can. Think of the intellectual movements we associate with particular universities: the Chicago School of Economics, the Yale School of Literary Theory (Jacques Derrida), the Cambridge School of the History of Political Thought (Quentin Skinner, J.G.A. Pocock, Peter Laslett), the Oxford Movement of Anglicans to the Catholic Church (John Henry Newman, Gerard Manley Hopkins, Ronald Knox), the Wisconsin Tradition in Legal History (James Willard Hurst, Lawrence Friedman, Robert Gordon).

Universities promote intellectual movements like these by hiring certain faculty and not others, by attracting graduate students interested in certain fields of study and not others, and by sponsoring lectures and conferences on certain subjects and not others. It’s the same with commencement programs. If Michigan State wants to deliver a message about the unfairness of affirmative action, it might invite Ward Connerly. If the Catholic University of America wants to deliver a message about the sanctity of life, it might invite Cardinal Timothy Dolan.

When Montana State invites a minister to lead its graduates in prayer, it too is acting as a participant in the market of ideas. Even though it’s a public institution, it can stake out almost any position it likes. It is under no obligation to give equal time to competing ideas. (The president of the United States is a public official, and we expect him to promote an agenda.) Because it’s a public institution, though, the people have ultimate control over the messages it delivers. And in this matter of praying, the people have taken the position (in the establishment clause) that it can’t promote religion. It is a good thing to recall that God is with us in all our affairs; we should begin every undertaking by blessing his holy name. But we don’t want the government and its agencies superintending our devotions.

It would be a mistake to suppose that this rule (don’t endorse prayer) is an impediment to academic freedom. On the contrary, it is an exercise of academic freedom. In the world of higher education there are different schools of thought on the subject. Americans take one position. The English take another. At Oxford University commencements the Vice Chancellor touches master’s and doctoral candidates on the head with a Bible and admits them to rank “in the name of the Father, of the Son, and of the Holy Ghost.”

And even at American graduations, students, faculty, parents, and alumni are free to pray on their own. As I said earlier, the free speech clause protects private speech from government interference. When public schools speak, they may (indeed, must) be neutral on matters of religion. But they can’t impose that point of view on other speakers.

Catholic schools like Notre Dame and Georgetown are also participants in the market of ideas when they stage commencements. In a culture like ours, where abortion has become a form of birth control, it is a welcome contribution to the free market of ideas when a school delivers a pro-life message at graduation. The AAUP suggested that Notre Dame had a duty to “protect and model free inquiry and open dialogue” by honoring someone who condemned the pro-life message. That’s an odd—I would say surprising—position to take for an organization devoted to academic freedom. Notre Dame might protect open dialogue by allowing its students and faculty to take a variety of positions. It would model academic freedom by regulating with a light hand. But to say that the school is obliged to temper its own speech by endorsing contrary ideas is the essence of censorship.

In the piece, John raises several examples of religiously affiliated and unaffiliated universities making decisions about student groups.  He argues that the key distinction is between the public and the private: Georgetown, CUA, and Vanderbilt are different cases than UC Hastings.  For a somewhat contrasting view about the importance of the division between public and private higher education, see Paul Horwitz’s institutionalist take in his new book, First Amendment Institutions.  My own view about the endorsement “test” as an Establishment Clause standard is more negative than John’s.  But–quite apart from the constitutional context–he makes many insightful points about the nature of endorsement and the meanings that we reasonably ascribe to “official” action by institutions of higher education.

And do see the St. John’s Journal of Catholic Legal Studies’ recent collection of essays addressing the question, “Whom Should a Catholic Law School Honor?”

Around the Web This Week

Some interesting law & religion stories from around the web this week:

Perovic (ed.), “Sacred and Secular Agency in Early Modern France”

Sacred_SecularThis May, Bloomsbury Publishing will publish Sacred and Secular Agency in Early Modern France edited by Sanja Perovic (King’s College). The publisher’s description follows.

The opposition between ‘religion’ and ‘modernity’ has long held the status of a self-evident truth. Recently, however, there has been a growing realization that religion has not died out and may be more compatible with modern society than previously assumed.This development is particularly striking in France where laïcité has long been the official doctrine.

How did religion become opposed to the secular and modern? If distinctions between sacred and secular are less adequate than commonly believed, how do these two categories interact? Addressing these questions, this book explores the persistence of religious categories on the cultural landscape of early modern France. France was the birthplace of Europe’s first secular state and the centre of two movements considered indispensable to secularization – the Enlightenment and Revolution of 1789. As such France is vital for understanding how religious antecedents informed modern political institutions and ideals. By uncovering the role of religion in shaping categories most often associated with modernity this book offers a new perspective on the master narrative of secularization.