Religious Freedom in America

I have been reading this collection on “Religious Freedom in America,” edited by Allen Hertzke. The authors cover the subject from a number of perspectives, including Thomas Kidd and Vincent Philip Muñoz with perspectives on the Founding, and important contributions from the Sikh and Muslim traditions, which are not often heard in these debates.

There is also an empirical essay of particular interest for those trying to figure out the current state of religious freedom. America post-Smith has a welter of “mini-RFRAs” establishing balancing tests meant to offer more protection to religious exercise than a “rational basis” standard. The results are not encouraging. Professors Robert R. Martin and Roger Finke collected thousands of religious liberty cases and coded them according to various metrics. One metric was how often courts invoked a “compelling” government interest in considering a religious liberty claim. In an earlier post, I had noted the relative lack of detail in judicial opinions concerning what constitutes a “compelling” interest in federal law that, along with the least restrictive means to meet that interest, would overcome a substantial burden on religious freedom.   The authors provide some answers from their review of state court decisions. Their review indicated that states have articulated at least some compelling interests; these include “completing a trial without a three-day delay in deliberations, maintaining a zoning district as a single-family residential zone and … public safety and ‘aesthetics’”.  Among other things, they conclude that although the United States remains a stronghold for religious liberty by comparison with other countries, religious freedom prevails in less than half the cases, and that “free exercise claimants remain at a stark disadvantage in the face of generally applicable, religiously neutral laws.”

From the results of this study, it seems the legacy of Smith has worked all too well. Despite RFRA and state-level initiatives, the state under cover of “neutral” laws, still wins most of the time. And there is much reason to believe many of these neutral laws are not neutral at all, especially when we consider initiatives like the contraceptive mandate. But this study does give the lie to the arguments of some secularists that religion is too powerful in our society. The contrary seems to be increasingly the case.

Roberts, “Voodoo and Power”

In November, the Louisiana State University Press will release “Voodoo and Power: The Politics of Religion in New Orleans, 1881-1940,” by Kodi A. Roberts (Louisiana State University).  The publisher’s description follows:

The racialized and exoticized cult of Voodoo occupies a central place in the popular image of the Crescent City. But as Kodi A. Roberts argues in Voodoo and Power, the religion was not a monolithic tradition handed down from African ancestors to their American-born descendants. Instead, a much more complicated patchwork of influences created New Orleans Voodoo, allowing it to move across boundaries of race, class, and gender. By employing late nineteenth and early twentieth-century first-hand accounts of Voodoo practitioners and their rituals, Roberts provides a nuanced understanding of who practiced Voodoo and why.

Voodoo in New Orleans, a mélange of religion, entrepreneurship, and business networks, stretched across the color line in intriguing ways. Roberts’s analysis demonstrates that what united professional practitioners, or “workers,” with those who sought their services was not a racially uniform folk culture, but rather the power and influence that Voodoo promised. Recognizing that social immobility proved a common barrier for their patrons, workers claimed that their rituals could overcome racial and gendered disadvantages and create new opportunities for their clients.

Voodoo rituals and institutions also drew inspiration from the surrounding milieu, including the privations of the Great Depression, the city’s complex racial history, and the free-market economy. Money, employment, and business became central concerns for the religion’s practitioners: to validate their work, some began operating from recently organized “Spiritual Churches,” entities that were tax exempt and thus legitimate in the eyes of the state of Louisiana. Practitioners even leveraged local figures like the mythohistoric Marie Laveau for spiritual purposes and entrepreneurial gain. All the while, they contributed to the cultural legacy that fueled New Orleans’s tourist industry and drew visitors and their money to the Crescent City.