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Botham, “Almighty God Created the Races: Christianity, Interracial Marriage, and American Law”

This February, the University of North Carolina Press will publish a paperback edition of Almighty God Created the Races: Christianity, Interracial Marriage, and American Law by Fay Botham (visiting assistant professor at Hobart and William and Smith Colleges). The publisher’s description follows.

 In this fascinating cultural history of interracial marriage and its legal regulation in the United States, Fay Botham argues that religion–specifically, Protestant and Catholic beliefs about marriage and race–had a significant effect on legal decisions concerning miscegenation and marriage in the century following the Civil War. She contends that the white southern Protestant notion that God “dispersed” the races and the American Catholic emphasis on human unity and common origins point to ways that religion influenced the course of litigation and illuminate the religious bases for Christian racist and antiracist movements.

Posted on by Mark Movsesian

Lloyd, “Race and Political Theology”

From Stanford University Press, a new collection of essays, Race and Political Theology, on how the experiences of Jews and African-Americans inform discussions about religion and politics. Vincent W. Lloyd (Syracuse) is the editor. The publisher’s description follows.

In this volume, senior scholars come together to explore how Jewish and African American experiences can make us think differently about the nexus of religion and politics, or political theology. Some wrestle with historical figures, such as William Shakespeare, W. E. B. Du Bois, Nazi journalist Wilhelm Stapel, and Austrian historian Otto Brunner. Others ponder what political theology can contribute to contemporary politics, particularly relating to Israel’s complicated religious/racial/national identity and to the religious currents in African American politics. Race and Political Theology opens novel avenues for research in intellectual history, religious studies, political theory, and cultural studies, showing how timely questions about religion and politics must be reframed when race is taken into account.

Posted on by Marc O. DeGirolami

Justice John Marshall Harlan on Education and Religion

In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908).  The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching.  The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).

I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:

The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children.  So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church.  In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters.  Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people?  The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public.  The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.

Posted on by Mark Movsesian

Martin Luther King on Just and Unjust Laws

Today is Martin Luther King Day in the United States. In commemoration, here’s a passage from Dr. King’s famous Letter from a Birmingham Jail, which he wrote in 1963 to answer clergy who had criticized his willingness to break laws as part of his anti-segregation campaign:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I it” relationship for an “I thou” relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a Read more

Posted on by Mark Movsesian

Bartrum on the Ministerial Exception

Ian Batrum has posted Religion and Race: The Ministerial Exception Reexamined. The abstract follows. — MLM

This essay is a contribution to the Northwestern University Law Review’s colloquy on the ministerial exception, convened following the Supreme Court’s decision to hear arguments in Hosanna-Tabor v. EEOC.  I take the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. I offer historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, I suggest that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

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Stolzenberg on Race and Religion in Law

Nomi M. Stolzenberg (University of Southern California Gould School of Law) has posted Righting the Relationship Between Race and Religion in Law. The abstract follows.—YAH

This review discusses the interrelationship of race and religion in law, the subject of Eve Darian-Smith’s new book, which seeks to rectify the neglect of religion in the study of race and law and the parallel neglect of race in studies of law and religion. Concurring with the book’s basic propositions, that the segregation of race and religion into separate fields of legal studies needs to be overcome and the religious origins of fundamental liberal legal ideas need to be recognized, I tease out different ways in which race and religion can be “linked” and religion can “play a role” in the development of modern law that are not fully parsed out in Darian-Smith’s analysis. Applauding her attempt to integrate recent challenges to the long regnant “secularization thesis” into the study of race and law, I point out some unresolved ambiguities in those challenges and their implications for law.