The Author’s Corner with Steven Green

the third disestablishment

Steven Green is the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Williamette University. This interview is based on his new book, The Third Disestablishment: Church, State, and American Culture, 1940-1975 (Oxford University Press, 2019).

JF: What led you to write The Third Disestablishment?

SG: Many things led me to write The Third Disestablishment.  I have written extensively about the ongoing dynamic of religious disestablishment in the 18th and 19th centuries.  My thesis has been (and continues to be) that there were various levels of disestablishment — political, institutional, legal, cultural — and that they occurred in incremental steps and at different times.  In essence, disestablishment was not perfected with the enactment of the 1st Amendment and, quite clearly, there was never a consensus on what it meant.  The Third Disestablishment brings this narrative forward to the mid-20th century where the Supreme Court formally embraced separation of church and state as the meaning of the Establishment Clause.  The book examines the cultural forces behind this embrace.  I felt that this was a story that had not been fully told before.

I also wrote the book in order to explore the background of the ongoing controversy over whether separation of church and state is/was the correct model.  The book also seeks to address why separationism arose, then fell into disfavor, at least as a legal principle.   Finally, on a personal level, in my earlier career as a 1st Amendment lawyer, I encountered several of the figures and organizations discussed in the book, though in their much later years.  This motivated me to examine the initial dynamic that led them to become involved in this issue.

JF: In two sentences, what is the argument of The Third Disestablishment?

SG: The book responds to more recent interpretations that maintain that separation of church and state became a legal and popular construct in mid-century due chiefly to residual Protestant suspicions of Catholicism.  It also maintains that even in its heyday, church-state separation was a contestable and indeterminate concept, and that its demise both legally and culturally began much earlier than has otherwise been maintained.

JF: Why do we need to read The Third Disestablishment?

SG: While numerous books have been written on the development of church and state, this book provides a fresh perspective by interweaving the cultural and legal developments of the period into  comprehensive narrative.  It examines the cultural backdrop to the Court’s adoption of its modern church-state jurisprudence.  It explores the roles of leading figures of the time, including Reinhold Niebuhr, John Courtney Murray, Paul Blanshard, Cardinal Francis Spellman, Billy Graham, Norman Vincent Peale, John F. Kennedy, and several consequential Supreme Court justices.

JF: When and why did you decide to become an American historian?

SG: I have been interested in the interaction between religion and politics/law in US history since undergraduate school.  I made the decision to enter a history PhD program after practicing law for 4 years.   Since then, I have had an amazing career that has allowed me to do legal advocacy, teaching, and scholarship in the area of religion, law, politics and history. 

JF: What is your next project?

SG: I am writing a book for Cornell University Press in its religion in public life series on–you guessed it–the development of church-state separation in American history.

JF: Thanks, Steven!

Winnifred Sullivan on the Masterpiece Cakeshop Case: What is Religion?

Cake baker

Indiana University religion professor Winnifred Fallers Sullivan wants to know how the Supreme Court defines religion.  Here is a taste of her piece at The Immanent Frame,
Is Masterpiece Cakeshop a Church?“:

Let us weigh in where angels fear to tread. Where is the religion in this case and what kind of religion is it?

Mr. Phillips’s religion is described by Justice Anthony Kennedy as follows:

Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.

That is all. That qualifies Mr. Phillips for constitutional attention.

What do we know about Mr. Phillips’s religion from this? We know that he calls himself a Christian. We are told that he understands this to mean that his whole life should reflect fidelity to the teachings of Jesus. Virtually all Christians (perhaps a strong majority of Americans) could affirm something like this. Presumably that would not be enough to qualify a person for special legal treatment. What more is required for such treatment is a bit murky.

If we look to the religious claims in past cases, before the sincerity test was standardized, we see that Mr. Reynolds in the famed Mormon polygamy case said he would be damned if he did not practice plural marriage. The Court made a careful, if bigoted, analysis of Mormon religious teaching. The Amish families in the Yoder case said that sending their children to high school would destroy the Amish religious community. The Court reported lovingly and at length on the Amish religious way of life. Mr. Smith and Mr. Black said that ingesting peyote was a sacramental mandate, central to their weekly worship. Dissenting justices rehearsed the history of peyote use in the Native American Church and speculated about the Church’s benefits for remediating Native American alcoholism.

The Court no longer traffics in such amateur philosophizing about religion and religious practice. Religion today has become standardized and formatted for the purposes of laws protecting religious freedom.

What else does the Court report about Mr. Phillips? What makes this Colorado baker so obviously deserving of special treatment, when Mr. Reynolds and Mr. Smith and Mr. Black were not? According to the Court,

  1. He is “devout.”
  2. He believes that God intends marriage to be restricted to heterosexual couples.
  3. He believes it would be wrong for him to sell a cake he created to a same-sex couple for their wedding.

Let us consider each of these in turn and how they add up to the core of what counts as religion today….

Read the entire piece here.

Trump: “You know why I do it? I do it to discredit you all and demean you all so when you write negative stories about me, no one will believe you.”

Republican U.S. presidential candidate Donald Trump speaks in Janesville

When Lesley Stahl asked Donald Trump in an off-camera meeting to explain “his barrage of insults aimed at journalists.” Trump responded:

‘You know why I do it? I do it to discredit you all and demean you all so when you write negative stories about me, no one will believe you…So, put that in your head for a minute.”

Read all about it here.  This guy is a tyrant.

Tweeting the History of Slavery at the University of Virginia

UVA

The Daily Progress has a nice piece on Kirt von Daacke, Professor of History at the University of Virginia and the university’s co-chairman of the President’s Commission on Slavery, who has been tweeting the results of his research. Check out his tweets @slaveryuva

Here is a taste:

Kirt von Daacke, an assistant dean of history and co-chairman of the President’s Commission on Slavery at the University, writes most of the tweets. The periodic intrusion into Twitter timelines helps to keep the immediacy of slavery alive at the university, von Daacke said, and helps users get a sense of how interconnected and violent the system was in Central Virginia.

“Real people lived and died to build and maintain the U, it’s not just abt Jefferson. #SlaveryU,” he posted in January.

“I started tweeting out information eight or nine months ago just as a way to share it, promote our existence and begin to think about the evidence,” von Daacke said. “As I did it, I was struck by how useful it was as a way to begin to see patterns in all the data.”

So he kept tweeting between classes and meetings, sometimes enlisting students or other researchers to write a few posts about their own research.

“Each individual tweet doesn’t do much, but if you are following, it starts to creep in just how many people were involved, how much money, how much violence and misery,” he said.

Read the rest here.

This project is certainly fitting in light of what happened on the Charlottesville campus in August, but it also serves a great model for using Twitter to share snippets of historical research.

 

 

Is the Trump Wiretapping Accusation an Impeachable Offense?

wiretapping

I don’t know.

But Bloomberg columnist and Harvard Law School professor Noah Feldman thinks it might be.  Here is a taste of his recent column:

The sitting president has accused his predecessor of an act that could have gotten the past president impeached. That’s not your ordinary exercise of free speech. If the accusation were true, and President Barack Obama ordered a warrantless wiretap of Donald Trump during the campaign, the scandal would be of Watergate-level proportions.

But if the allegation is not true and is unsupported by evidence, that too should be a scandal on a major scale. This is the kind of accusation that, taken as part of a broader course of conduct, could get the current president impeached. We shouldn’t care that the allegation was made early on a Saturday morning on Twitter.

In a rule of law society, government allegations of criminal activity must be followed by proof and prosecution. If not, the government is ruling by innuendo.

Shadowy dictatorships can do that because there is no need for proof. Democracies can’t.

Thus, an accusation by a president isn’t like an accusation leveled by one private citizen against another. It’s about more than factual truth or carelessness.

The government’s special responsibility has two bases. One is that you can’t sue the government for false and defamatory speech. If I accused Obama of wiretapping my phone, he could sue me for libel. If my statement was knowingly false, I’d have to pay up. On the other hand, if the president makes the same statement, he can’t be sued in his official capacity. And a private libel suit mostly likely wouldn’t go anywhere against a sitting president — for good reason, because the president shouldn’t be encumbered by lawsuits while in office.

The second reason the government has to be careful about making unprovable allegations is that its bully pulpit is greater than any other. True, as an ex-president, Obama can defend himself publicly and has plenty of access to the news media. But even he doesn’t have the audience that Trump now has. And essentially any other citizen would have far less capacity to mount a defense than Obama.

For these reasons, it’s a mistake to say simply that Trump’s accusation against Obama is protected by the First Amendment.

False and defamatory speech isn’t protected by the First Amendment.

Read the entire piece here.

Peter Steinfels on the Russian Dossier and the Press

trump-press

Over at dotCommonweal Peter Steinfels has some good thoughts about the way the press has handled the entire Russian dossier affair.

A taste:

Donald Trump is who he is.  Despite all the wishful thinking, there is no inner “presidential” Trump about to emerge on January 20.  That’s the main lesson to take away from his press-conference exercise in free-association, misrepresentation, diversionary attacks, and calculated indignation.  But here are two further thoughts: 

The news media: Media condemnation’s of BuzzFeed’s online publication of 35 pages of unverified and in some cases salacious charges have come from every direction.  It is hard to imagine that if Breitbart had possessed such a dossier on Hillary Clinton, it would have waited until after the election to publish it.  But that’s the least of the matter. 

We now know that this dossier of unverified charges was floating around Washington for months.  Not only were intelligence agencies looking into them, which was their responsibility, but so were reporters from major news media.  It is in fact a tribute to the mainstream media that, not being able to verify the charges, no one published any of this material.  Neither political nor profit-making motives outweighed professional standards.   Trump himself adverted to this in his opening remarks, although the point was soon lost in his routine anti-media bluster and whining. 

The press is going to play an important role during this administration.

Cruz: “I Am Not Running for Pastor-in-Chief”

Cruz Pastor in Chief

Here is Ted Cruz talking with David Brody of the Christian Broadcasting Network about his so-called “God Talk.”  (I am having trouble embedding the video.  Watch it at the link above).

Cruz is a master politician.  This is a very shrewd answer.

He says that it is not his “calling” to deliver the salvation message.  Fair enough.  Cruz will not use the presidential bully pulpit to preach the Gospel.

He is right when he says the First Amendment reflects the religious beliefs of Muslims and atheists.  Again, Cruz is right.  But the Texas Senator rarely talks about religious liberty outside the context of Christianity.

And when Cruz says that the United States was founded on Judeo-Christian principles that need to be restored today in America, it raises questions about how he reconciles this belief with his defense of religious liberty.

And one more thing about his discussion of the “founding.”  The United States was not “founded” by people fleeing religious oppression.  Most of the so-called founding fathers were born in the British colonies. Here Trump is confusing the “founding” with what I have called the “planting” of the British colonies in the seventeenth century.  I talk about the difference here and in Chapter Five of Was American Founded as a Christian Nation?: A Historical Introduction.

But let’s give Cruz the benefit of the doubt here.  Perhaps he might accuse me of playing semantics when I distinguish the “planting” from the “founding.”  What Cruz is really talking about is the seventeenth-century migrants who first settled along the eastern seaboard, developed societies, and eventually rebelled against England in 1776.

Were these settlers fleeing religious persecution?  Some of them were.  In New England a small group of Puritans came to Plymouth and Massachusetts Bay in pursuit of religious liberty from what they perceived as the tyrannical leaders of the Church of England, clergy and bishops who were not fans of Calvinism.

But when they arrived in North America, they were certainly not champions of the kind of religious liberty that Cruz celebrates in the First Amendment.  They imprisoned, fined, ousted, and even killed people who did not share their religious beliefs.  So let’s not pretend that the colonies were planted (or “founded”) on principles of religious liberty. As I tell my classes, inhabitants of Massachusetts Bay were religious free–free to conform to Puritan orthodoxy.  Government did “get in the way” of people practicing their faith according to the dictates of their consciences.  Just ask Anne Hutchinson, Roger Williams, and Mary Dyer, to name just a few.

But the Puritans are only a small part of the story.  There were several colonies–including Virginia, the first British colony–that were not founded by people seeking religious liberty.

I am afraid that Cruz is taking his history cues from David Barton, the Republican activist who runs his super-PAC.

I also want to call attention to what Cruz does not say in this interview with Brody.  He never says how his Christian faith will inform the way he governs or his moral vision for the United States.

This may be going too far, but I wonder if Cruz’s claim that he will not be “pastor-in-chief” can be compared to the way that John Winthrop, the Governor of the Massachusetts Bay Colony, was also not a “pastor-in-chief.”  Winthrop was a political leader.  He was not responsible for preaching the gospel in the colony.  At the same time, he enforced and advanced all of the discriminatory policies I mentioned above.

In Massachusetts Bay, church and state were separate.  Technically, it was not a theocracy. But the line that separated the government from the church was very, very thin.

And finally, if the events of the last couple of days are any indication, it appears that Cruz’s commitment to the Constitution is not as important as his moral politics.

Do GOP Candidates Want Religious Freedom or the Closing of Mosques? They Can’t Have Both

We shopped this piece around a few weeks ago, but it never found a home.  It is slightly outdated as far as the news cycle goes, but I am glad that History News Network has decided to run it.  Here is a taste:


In the wake of the recent murders in Paris at least two GOP presidential candidates—Donald Trump and Marco Rubio—have said that American mosques should be shut down because they pose a security risk.  The assumption is that mosques serve as breeding grounds for ISIS, the Jihadist extremists who claimed responsibility for the Paris attacks and who have targeted the United States.
Last week Donald Trump said that the United States “will absolutely have no choice” but to close down mosques where “some bad things are happening.” Marco Rubio called for the closing of any place where “radicals are being inspired,” including mosques. Other GOP candidates have not been as overt as Trump and Rubio, but their attacks on the Muslim community in America, and their willingness to conflate all Muslims with ISIS, has been made abundantly clear.

I am sure that Trump and Rubio realize that the closing of mosques, or any other religious institution or place of worship, is a direct violation of the religion clause of the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Not only are Trump and Rubio calling for the prohibition of the free exercise of religion among Muslims, but they are also implying that the United States is a Christian nation that has the right to threaten the right of non-Christians to worship freely. In other words, they are violating both the free exercise clause and the establishment clause.
How do these Republican presidential candidates justify these policies towards Muslims with their staunch commitments to religious freedom?
Until recently, conservative Christians rarely talked about religious freedom. When writing and speaking about religion and politics, many of them preferred to talk in terms of the United States as a “Christian nation.” Religious liberty was certainly important, and should always be defended, but this was a freedom usually invoked by religious minorities—Jews, Jehovah Witnesses, defenders of Native American spiritual practices—in a country in which Christianity was privileged.

Read the rest here.

Did Madison and Jefferson Influence the First Amendment Religion Clauses?

James Madison

In a recent article in American Political Thought which I have yet to read, Mark David Hall argues that there is little evidence to support the claim that the men who ratified the first amendment were influenced by James Madison’s Memorial and Remonstrance (1785) and Thomas Jefferson’s Statute for Religious Liberty (1786).  I have heard Hall make this argument before.  I am glad to see it is now in print.

For more see Jon Rowe’s post at American Creation.

Mark Chancey on How to Teach the Bible in Public Schools

I met Mark Chancey a few years ago in Durham, NC.  I was speaking at a conference he helped organize at Duke University on the Bible in the public square.  Since then I have turned to his work for help in making sense of the thorny issue of religion in public schools.

Over at Religion & Politics, Mark has a helpful essay entitled “How Should We Teach the Bible in Public Schools?”  Here is a taste:

The issue of how public schools teach about religion is relatively under-studied, but it is clear that confusion abounds on the question of how to meet the Court’s benchmark of objective, secular presentation. For these reasons, I welcomed an invitation to study public school Bible courses for the Austin-based Texas Freedom Network Education Fund, a watchdog group. Using open records requests, TFN obtained course materials from sixty Bible courses taught in Texas high schools in the 2011-2012 school year; they asked me to examine them for academic quality and adherence to the legal guidelines offered by various federal courts. 

The resulting report, Reading, Writing & Religion II: Texas Public School Bible Courses in 2011-2012 (a follow-up to an earlier study), found that most Texas Bible courses crossed the constitutional line by promoting certain religious perspectives over others and religion over non-religion. While many problems appeared to be missteps by well-intentioned and otherwise well-trained teachers, others reflected overt sectarian agendas. 

The syllabus for one course, for example, identified its objective as “to consider the teachings of the New Testament through the lens of faith,” and students read books on Christian apologetics. Many courses depicted the Bible as straightforward, unproblematic history—even the miracle stories. A PowerPoint slide from one district illustrates this approach, instructing students that “Christ’s resurrection was an event that occurred in time and space – that it was, in reality, historical and not mythological (cf. 2 Pet. 1:16)” [sic]. Many courses presented traditional Christian theological interpretations of scripture as normative readings, going so far as to teach students that the Tanakh/Old Testament supernaturally predicted the coming of Jesus. (When a New York Times reporter questioned this approach, pointing out to one teacher that Jews do not believe that Jesus fulfilled Isaiah’s prophecies, the teacher curiously countered, “In New York, they don’t.”) Pseudoscience made its way into some courses, such as those that advocated creationism or the belief that racial origins can be traced to Noah.  

The good news is that other Texas courses succeeded admirably in treating the biblical material in ways that respected constitutional limits and diverse religious sensibilities. How did they do it? 

Read the rest here, including some suggested readings on the topic.

How Far Should We Go With the Separation of Church and State?

Elmwood Church

A few weeks ago I did a post and an episode of the Virtual Office Hours on the controversy over whether or not the Ground Zero Cross should be displayed at a publicly funded museum devoted to the tragic events of 9-11.  In those pieces I argued that this was not a church-state issue, but a public history issue.  If the cross gave meaning to the people of New York and the nation in the wake of the attacks, then it had historical significance and thus belonged in the museum.  A federal court agreed.

In yesterday’s Washington Times, Robert George, a law and politics professor at Princeton (currently in residence at Harvard), told the story of another church-state case that has found its way to the federal courts.  Today the Supreme Court will decide whether to a hear a case on the “constitutionality of holding a high school graduation in a church auditorium.”  Secular groups do not want the Elmbrook, Wisconsin  School District to hold its graduation ceremony in a local megachurch because to do so would “cause students to believe that the district was endorsing Christianity.” The 7th U.S. District Court of Appeals agreed with them.

As George informs us, the Elmbrook School District chose the church auditorium because it was the best, most affordable place in town to hold a graduation ceremony.  It has a bigger space than the school gym, has more parking, has more seating, and has air conditioning. As far as I can tell, the religious character of the building had nothing to do with the decision.

The church in question is Elmbrook Church, a non-denominational evangelical megachurch located in the Milwaukee suburbs.  Some of my older evangelical readers will recall that the long-time pastor of this church was popular Christian writer and speaker Stuart Briscoe.  (Others may be familiar with his wife, Jill Briscoe). I think I am safe in saying that Elmbrook Church was a megachurch before megachurches were popular.  It has been a flagship congregation on the American evangelical landscape.

Megachurches like Elmbrook Church are known for massive auditoriums, gymnasiums, spaces for post-service sociability and fellowship, audio-visual technology, and excellent sound systems.  In many communities the megachurch has better facilities than any other building in town.  Some megachurches do not even contain religious imagery because their leaders want to be sensitive to newcomers and those who are uncomfortable at more traditional churches filled with crosses, icons, altars, and stained glass windows. Many megachurches rent their facilities for weddings, basketball practices, and conferences.  (My daughter’s 6th grade public school basketball team occasionally practices in one).

Here are two of the spaces in the Elmbrook Church:

Why can’t the evangelical propensity for building large spaces make a contribution to the common good in towns like Elmbrook, Wisconsin?  When does a multipurpose space become a religious space?  When does a religious space become a multipurpose space?

Robert George gets the last word:

…Faced with expensive lawsuits over their graduation venues, most school districts simply will capitulate moving graduation to worse or more expensive venues and harming students and school budgets. One school district in Wisconsin already has been forced to do just that: It moved its graduation ceremony from the Elmbrook church auditorium to a cavernous, 42,000-seat baseball stadium at triple the price of the church.

All of this calls for a deep breath and a dose of common sense. The Supreme Court has long held that the Constitution permits the government to be neutral toward religion meaning that the government can treat religious entities on the same terms as nonreligious entities. That was just what the school district did here: It examined all available venues and chose the best facility for the price. The fact that the best facility happened to be a church did not make a neutral, common-sense decision unconstitutional.

Any other result would require the government to be overtly hostile to religion. No longer could school districts compare religious and nonreligious venues on equal terms and choose the best venue for the price. Instead, they would have to avoid religious venues, even when doing so harms students and school budgets. The Constitution does not require such a counterintuitive result.

…Let’s hope the Supreme Court takes the Elmbrook case and spares us and our school districts and students unnecessary expenses.

Seriously?

There are a lot of good and thoughtful teachers and scholars who work at Liberty University.  It is time for these cooler heads to prevail and do something about the Dean of the Law School, Mat Staver. 

You may recall that it was Staver who was one of the few members of the Christian Right who defended David Barton’s The Jefferson Lies after nearly all Christian conservatives had backed away from most of the book’s claims about our third president.

Now Staver is arguing that Islam is not protected under the First Amendment because it is not a religion, but a “political ideology.”  How can Liberty claim to have a respectable law school when its dean continues to promote this kind of stuff?  These remarks are not only detrimental to the reputation of Liberty Law School, but they should be embarrassing to any American Christian who cares about religious liberty and the First Amendment.

Warren Throckmorton explains:

Mat Staver, Dean of the Liberty University Law School told OneNewsNow, the “news service” of the American Family Association that Islam is more political ideology than religion and as such does not merit the same religious liberty protections.  Staver said

“One of the issues, however, that needs to be considered is whether or not there will be much emphasis placed on advancing the Muslim cause,” he notes. “Certainly that could be a concern to many people around the country.”
He explains why that should be a concern in a law school.“Islam is a political ideology. Certainly it takes characteristics of religion, but by and large, at its core, both in the United States and around the world, it is a political ideology,” Staver asserts. “Consequently, to use the same kind of laws for an advancement of a political ideology that you would for religious liberty could eventually cause some concerning issues that we want to address.”

Thomas Jefferson certainly disagreed with this analysis. When Jefferson commented on his Virginia law on religious freedom, he said the law was meant to cover all religions. Specifically, Jefferson wrote:

The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason & right. It still met with opposition; but, with some mutilations in the preamble, it was finally past; and a singular proposition proved that it’s protection of opinion was meant to be universal. Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word “Jesus Christ,” so that it should read “departure from the plan of Jesus Christ, the holy author of our religion” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of it’s protection, the Jew and the Gentile, the Christian and Mahometan [Islam], the Hindoo, and infidel of every denomination.

The Virginia statute is not the First Amendment but it is clear that James Madison, acting in sympathy with Jeffersonian views, intended the same scope for the First Amendment.

Another frightening aspect of Staver’s reasoning is that it could easily be applied to other religions, including Christianity. Churches that pass out political guides and organize members to vote GOP could easily be considered to be purveyors of a political ideology.

This Week’s Patheos Column: "John F. Kennedy, Rick Santorum, and the Separation of Church and State"

In case you haven’t heard, John F. Kennedy’s view on church and state makes Rick Santorum want to throw up. Yes, you read that correctly. This weekend in an interview with George Stephanopolous, Santorum stood behind an earlier campaign statement in which he said that he almost vomited the first time he read Kennedy’s September 12, 1960 speech to a group of southern Baptist ministers in Houston.

What was it about JFK’s speech that made Santorum so nauseated? According to the former Pennsylvania senator it was Kennedy’s statement: “I believe in an America where the separation of church and state is absolute.”

Since this statement prompted such gastronomic discomfort for Santorum, it is worth looking closely at how Santorum interpreted that line from Kennedy’s speech and what exactly Kennedy meant when he uttered it.

Read the rest here.