Around the Web

Here are some important law-and-religion news stories from around the web:

Chapman on Government Funding of Christian Education for Native Americans (and the meaning of the Establishment Clause)

Pretty neat paper by Nathan Chapman on the history of federal funding of Christian education for Native Americans from the Revolution to Reconstruction, and its implications–if any–for the meaning of the Establishment Clause. Here’s the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of “religious assessments,” or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to “civilize” American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to “persons of good moral character” to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

A New Translation of Second Nicea

9781786941275The Seventh Ecumenical Council, Second Nicaea (787 AD), is famous for its rejection of iconoclasm, a question that roiled the Byzantine state in the eighth century.  It’s the last council accepted as ecumenical by Eastern Orthodox Christians. (The Catholic Church has convened many since, including, most recently, Vatican II). All of which is to say that Second Nicea represents an important moment in church-and-state history.

Late last year, Oxford University Press published a new, two-volume English translation of the formal acts of the Council. Very few English translations exist, so this is an important addition to the scholarly literature. The book is The Acts of the Second Council of Nicaea (787),  and the translator is Richard Price (University of London). Here’s the description from the Oxford website:

The Second Council of Nicaea (787) decreed that religious images were to set up in churches and venerated. It thereby established the cult of icons as a central element in the piety of the Orthodox churches, as it has remained ever since. In the West its decrees received a new emphasis in the Counter-Reformation, in the defence of the role of art in religion. It is a text of prime importance for the iconoclast controversy of eighth-century Byzantium, one of the most explored and contested topics in Byzantine history. But it has also a more general significance – in the history of culture and the history of art. This edition offers the first translation that is based on the new critical edition of this text in the Acta Conciliorum Oecumenicorum series, and the first full commentary of this work that has ever been written. It will be of interest to a wide range of readers from a variety of disciplines.