E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Schultz shows how a deliberately fashioned coalition of Protestants, Catholics, and Jews (which eventually became the National Conference of Christians and Jews) worked together in a movement to refashion national identity so that all three faiths were understood as equally American. The idea was first devised in the 1910s and 1920s, first in response to the newly revitalized Ku Klux Klan, then in reaction to European totalitarianism in the 1930s. By World War II, it was incorporated into official government war material that was disseminated to millions of servicemen. By the 1960s, the idea of “Judeo-Christian America” was available for appropriation by the movement for racial equality, an issue that its pre-World War II proponents had carefully avoided. (The phrase frequently appears in the speeches of Martin Luther King, Jr., for example.) Drawing on a rich array of primary sources, Schultz shows how what was at first a small social movement managed to bring American society closer to its liberal ideals. It is a hugely important story, and I found it riveting reading.
The purpose of the idea of the “Judeo-Christian” was to make traditional, deep theological differences and well-embedded prejudices less salient than the idea that each of the three major faiths was simply a different way of worshipping the same God. In its time, it did a great deal of good.
It is that history that Justice Scalia implicitly relied on in his dissent in Lee v. Weisman, a 1992 decision invalidating a high school graduation prayer: “nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration-- no, an affection--for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily.” The limitation on government endorsement of religion that he proposes has its roots in the ideal of Tri-Faith America that Schultz describes: government should be barred from “specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ.)" More recent decisions of the Court suggest that Justice Scalia may be getting his way. Arizona Christian School Tuition Organization v. Winn, for example, which a few weeks ago held that no one has standing to challenge a tax credit for religious schools, suggests that the Court is less interested than it once was in vigorously enforcing the constraints of the Establishment Clause.
The problem with Scalia’s prescription of official monotheism is that it doesn’t fully appreciate the ways in which the ideal of Tri-Faith America responded to the conditions of pluralism specific to early Twentieth Century America. That ideal was attractive and even necessary precisely because, since the founding of the United States, the country’s religious composition had changed, with large numbers of Catholic and Jewish immigrants. What was inclusive in the 1940s is not necessarily inclusive today, any more than my then-perfectly fitting raincoat from elementary school would fit me today. We now have millions of atheists, agnostics, New Agers, Buddhists, Hindus, and assorted others. (Muslims have arrived in large numbers as well, but they aren't excluded by Scalia's proposal in the way these others are.) Theism is no better as a basis for social unity than the generalized Protestantism that prevailed at the time of the founding. If the aim is shared agreement, then it is counterproductive to propose unifying principles that large numbers of citizens cannot possibly agree to. If we are going to find bases of social unity today, they will have to be broader than this. Posted
2:46 PM
by Andrew Koppelman [link]