Posted on by Marc O. DeGirolami

Robinson on the Bible and Literature

In connection with my earlier post about how anyone, let alone a federal judge, could believe that the Establishment Clause requires the elimination of religious texts in public school classrooms, here is a complex essay by Marilynne Robinson (of Gilead fame) about the relationship between the Bible and important works of literature.  A bit:

The Bible is the model for and subject of more art and thought than those of us who live within its influence, consciously or unconsciously, will ever know . . . .

A number of the great works of Western literature address themselves very directly to questions that arise within Christianity. They answer to the same impulse to put flesh on Scripture and doctrine, to test them by means of dramatic imagination, that is visible in the old paintings of the Annunciation or the road to Damascus. How is the violence and corruption of a beloved city to be understood as part of an eternal cosmic order? What would be the consequences for the story of the expulsion from Eden, if the fall were understood as divine providence? What if Job’s challenge to God’s justice had not been overawed and silenced by the wild glory of creation? How would a society within (always) notional Christendom respond to the presence of a truly innocent and guileless man? Dante created his great image of divine intent, justice and grace as the architecture of time and being. Milton explored the ancient, and Calvinist, teaching that the first sin was a felix culpa, a fortunate fall, and providential because it prepared the way for the world’s ultimate reconciliation to God. So his Satan is glorious, and the hell prepared for his minions is strikingly tolerable. What to say about Melville? He transferred the great poem at the end of Job into the world of experience, and set against it a man who can only maintain the pride of his humanity until this world overwhelms him. His God, rejoicing in his catalog of the splendidly fierce and untamable, might ask, “Hast thou seen my servant Ahab?” And then there is Dostoyevsky’s “idiot” Prince Myshkin, who disrupts and antagonizes by telling the truth and meaning no harm, the Christ who says, “Blessed is he who takes no offense at me.”

Each of these works reflects a profound knowledge of Scripture and tradition on the part of the writer, the kind of knowledge found only among those who take them seriously enough to probe the deepest questions in their terms. These texts are not allegories, because in each case the writer has posed a problem within a universe of thought that is fully open to his questioning once its terms are granted. Here the use of biblical allusion is not symbolism or metaphor, which are both rhetorical techniques for enriching a narrative whose primary interest does not rest with the larger resonances of the Bible. In fact these great texts resemble Socratic dialogues in that each venture presupposes that meaning can indeed be addressed within the constraints of the form and in its language, while the meaning to be discovered through this argument cannot be presupposed. Like paintings, they render meaning as beauty.

Posted on by Marc O. DeGirolami

Does Banning Religious Texts in Public Schools Violate the Establishment Clause?

An interesting case out of the 9th Circuit back in August, Nampa Classical Academy et al. v. Goesling (the panel consisting of Judges Reinhardt, W. Fletcher, and Rawlinson, who concurred only in the result), in which an Idaho Public School Commission adopted a policy banning  outright the use of public funds to purchase all “sectarian and denominational texts” for instructional use in public school classrooms.  Apparently there is a provision of the Idaho constitution which provides, in relevant part, as follows:

No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.

The provision seems to me to be talking about proselytism in public schools; otherwise, it would really and truly mean that no “political” books or documents could be used in public school education, a rather perplexing position — ‘no U.S. Constitution in public schools!’  But I guess the Idaho school commission came up with a different interpretation.  There are speech claims and other standing issues involved here which knocked the case out, but what about the religion clause issue?  The policy may be rather knuckle-headed, but does it violate the Establishment Clause? 

ADDENDUM: I suppose somebody might think that including religious texts as part of secular instruction would itself violate the Establishment Clause.  Indeed, it appears that the district court thought this very thing: “If the Defendants allowed the Plaintiffs’ proposed curriculum, they would be in violation of the Establishment Clause.”  Nampa Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1093 (D. Idaho 2010).  That a school commission or school district would think this is regrettable, but these are not legal bodies and so the misunderstanding is not too surprising.  But that a district court could be this completely wrong about the law is mystifying.  In no way is it improper for a public school to include religious texts in the regular curriculum.  That’s been true historically since the founding of the country, and it was stated explicitly in Abington v. Schempp by Justice Clark.  What a strange mistake.

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Posted on by Marc O. DeGirolami

Strasser, “Religion, Education and the State”

If there is one thing that religion clause scholars generally agree on (in fact, there may be only one thing), it is the unsatisfactory quality of religion clause doctrine, and especially Establishment Clause jurisprudence.  Mark Strasser’s (Capital University) new book, Religion, Education and the State: An Unprincipled Doctrine in Search of Moorings (Ashgate 2011), appears to fit squarely within the genre.  The publisher’s description follows.

In the context of education, Church and State issues are of growing importance and appear to be increasingly divisive. This volume critically examines the developing jurisprudence relating to religion in the schools beginning with Everson v. Board of Education, where the US Supreme Court discussed the wall of separation between Church and State. The study traces both how the Court’s views have evolved during this period and how, through recharacterizations of past opinions and the facts underlying them, the Court has appeared to interpret Establishment Clause guarantees in light of the past jurisprudence when in reality that jurisprudence has been turned on its head. The Court not only offers an unstable jurisprudence that is more likely to promote than avoid the problems that the Establishment Clause was designed to prevent, but approaches Establishment Clause issues in a way that decreases the likelihood that an acceptable compromise on these important issues can be reached.

The study focuses on the situation in the US but the important issue of religion, education and the state has great relevance in many jurisdictions.

Posted on by Mark Movsesian

Conference on Christian Legal Thought (Jan. 7)

The Lumen Christi Institute will host the annual Conference on Christian Legal Thought on January 7 in Washington. Panels include “Public Unions and the State of Organized Labor,” “Pedagogy,” “Law, Speech, and Morality,” and “The Vocation of the Christian Lawyer and the Future of Legal Education.” Speakers include St. John’s own David Gregory. Details are here.

Posted on by Marc O. DeGirolami

Wardle on Abortion, Same-Sex Marriage, and Education

Another paper by Lynn Wardle (BYU), The Impacts on Education of Legalizing Same-Sex Marriage and Lessons From Abortion Jurisprudence.  The abstract follows.

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.

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Weddle & New on Religious Conservative Opposition to Anti-Bullying Legislation

Daniel B. Weddle (University of Missouri – Kansas City School of Law) and Kathryn E. New (recent graduate of University of Missouri – Kansas City School of Law) have posted What Did Jesus Do?: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation. The abstract follows.—YAH

Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity. These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools are already failing to address bullying effectively, efforts to thwart protection of any group of students — especially one that is routinely targeted — is unconscionable. Yet these devoted Christians zealously interfere with protection of LGBT students from abuse by their peers and believe wholeheartedly that they are doing children and Christ a great service. We believe they fundamentally misunderstand three things: the dynamics of bullying, the law pertaining to student-on-student abuse, and the example and teachings of Christ. This Article addresses these misunderstandings. We propose a response to the distortions that are used to promote what is an anti-gay agenda that represents neither the teachings of the Bible nor the position of most Christians and evangelicals, whom these organizations purport to represent. Our hope is that, once the distortions are debunked, thinking Christians will reject the misguided efforts of a relatively few but influential individuals and organizations. If new voices can confront the misleading claims of anti-gay zealots with informed educational, legal, and Biblical responses, perhaps the distortions will be seen for what they are by Christians and non-Christians alike.

Posted on by Mark Movsesian · 2 Comments

Another Ten Commandments Case

It is a truth universally acknowledged, that the Supreme Court’s decisions regarding religion in America’s public schools are widely disregarded.  No matter how many times the Court rules that officially-sponsored school prayers are unconstitutional, for example, the prayers continue.  The same pattern holds with regard to public Ten Commandments displays – though here, the Court bears much of the blame.  The Court has issued three decisions on public Ten Commandments displays over the past three decades, but they turn on very specific facts and fail to announce an easy principle.  For example, in two decisions issued on the same day in 2005, the Court held that a display of the Commandments in a Kentucky courthouse was unconstitutional, because reasonable observers would perceive an endorsement of religion, but that a display of the Commandments on the Texas State Capitol grounds was constitutional, because, well, the display had secular elements and hadn’t seemed to bother people.  One could forgive local officials for being confused.

A new Ten Commandments case has arisen in Giles County, Virginia, where the ACLU is suing the local school board in federal court for ordering that the Commandments be placed in the lobby of a local high school.  The school board argues that it has displayed the Commandments along with other historical documents, like the Declaration of Independence, that show that the school is not endorsing religion as such.  But the Supreme Court has been particularly suspicious of displays of the Commandments in public schools, and the facts suggest that, as in the Kentucky case, officials in Giles County surrounded the Commandments with secular documents only after some parents complained Read more

Posted on by Mark Movsesian

Lectures at Kellogg College (Oxford)

The Centre for the Study of Religion and Public Life at Kellogg College (Oxford) has announced two upcoming lectures.  On October 12, the Rev. Canon Dr. Vincent Strudwick will speak on “God and the Big Society,” and on November 7, Prof. Joseph Prudhomme (Washington College) will speak on “Teaching the Bible in State-Supported Schools.”  For details, please contact Kellogg College.  — MLM

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District Judge Blocks City’s Land Transfer to Catholic High School

The Associated Press reported last week that U.S. District Judge Robert Miller held that the city of South Bend could not transfer real property to a Catholic high school.  The city was supposed to transfer the property to the new St. Joseph’s High School, scheduled to open in the fall of 2012, to be used as a football stadium. In exchange for the transfer, the high school was to make the stadium available for use by city schools and organizations for 10 years. Opposition to the transfer came from four city taxpayers who argued the transfer violated the Establishment Clause. Specifically, the taxpayers argued that the transfer of the $1.2 million property constituted direct and substantial aid to a religious institution. The judge agreed and concluded that a reasonable observer would think “the city is endorsing St. Joseph’s High School, the local Catholic community, or the Diocese that operates the school.” The South Bend Tribune reported that no decision has been made regarding what the city’s next step will be and whether there will be an appeal of the court’s decision. For now, construction on the high school will continue as scheduled. –YAH

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Lasson on Anti-Semitism on University Campuses

Kenneth Lasson (University of Baltimore School of Law) has posted Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment. The abstract follows. –YAH

The romanticized vision of life in the Ivory Tower – a peaceful haven where learned professors ponder higher thoughts and where students roam orderly quadrangles in quest of truth and other pleasures – has long been relegated to yesteryear. While universities like to nurture the perception that they are protectors of reasoned discourse, and indeed often perceive themselves as sacrosanct places of culture in a chaotic world, the modern campus, of course, is not quite so wonderful.

The academic enterprise in America was besmirched by racism early on: until the latter part of the Twentieth Century, segregation and ethnic quotas were the norm, not the exception. But what was once accepted prejudicial policy has now given way to an aberrational form of political correctness, which still vividly illustrates failures of scholarly rigor – the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas – and which are all too often presented in the academic voice. Read more