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.