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Religion and Law, and the Civil Religion Complex: Reflections on Religious Studies 50 Years After Schempp
Leslie Ribovich, PhD student, Princeton University
The conference Religious Studies 50 Years After Schempp: History, Institutions, Theory provided a welcome opportunity for engaging discussions about the influence of the 1963 Schempp case. Presentations on Schempp's historical and cultural impact on public school practices and the academic study of religion at public universities opened up new questions for my own work about what the study of religion can add to the field of law and religion. Particularly stimulating for me were Sarah Barringer Gordon's comments about the fact that most people working in the field of religion and law are lawyers who are not trained in the study of religion and her discussion of the failure of scholars of religion and law to pay enough attention to race. I wonder to what extent failure to address race is because those working in the field use the language that lawyers writing about the topic use, rather than study of religion language to describe how law constructs categories like religion, morality, and secularism.
The construction of myth was a recurring theme throughout the conference. Many presenters, including Sarah Barringer Gordon and Sarah Imhoff, described Schempp as a mythic founding narrative for the academic study of religion in public universities, with the discipline actually beginning elsewhere and earlier. Charles Long also brought up the founding myth of the United States as a land of freedom. Long said (as he has elsewhere) that the United States is an Aboriginal-Euro-African culture. Studying religion in the United States must go beyond a Euro-American lens. The Constitution, Long said, was a lie that is hard to get out of-it favored a Euro-American view, promising freedom to all, but limiting the freedom of African Americans and indigenous people.
How has the mythical narrative of inclusiveness in the Constitution shaped not only the disciplinary concept of religion, but also the way scholars study law and religion? How can scholars of religion mobilize the idea that religion may look different in different times and places in relation to law and engage legal texts as ones that do not simply adjudicate but also construct religion? Other subfields in Religion have incorporated categories of analysis like race, gender, and sexuality, and turned years ago to lay people and religious practice. Yet, even with notable exceptions like Gordon and conference organizer Winnifred Sullivan, scholars of religion and law often take on the language of our legal sources, a language that grows out of another Protestant-dominated force: civil religion.
Numerous scholars have critiqued Robert Bellah's celebratory 1967 depiction of the "transcendental religious reality seen through experience of the American people" for being a primarily Protestant view that does not account for the exclusive practices it sanctions. However, instead of getting rid of the phrase we could consider how it works simultaneously as a rallying cry of progress and a means to exclude people(s). We might think of civil religion as a descriptive category not only in our sources but also operating in our writing. We can be reflexive about when we inadvertently take on the terminology of our sources, or when we assume that the cultural moment we are studying is primarily about what the case and its filings say it is about. Such unintentional vocabulary and framing could be called the "civil religion complex."
For instance, I presented a paper on the effects the Schempp case had on moral education in U.S. public primary and secondary schools. I argued that by implicitly accepting the patriotic exercises in the Schempp morning rituals, and by implying that they were an appropriate means to promote morality, the court allowed for a patriotic "secular" moral education. I did not talk about race in my paper, mostly because the decisions and statutes I was looking at were not explicitly about race, but the conference encourages me to approach these questions differently. As a non-lawyer, just describing the details of a case and making a point about it can be an accomplishment. However, religion scholars entering the field of law and religion must become familiar with legal language in order to possibly go beyond it. Details of cases are crucial, but religion scholars can offer other analytical categories like race to the study of law and religion.
For digging deeper into the content and exclusivity of the patriotism I described, in the future I will look to sources other than cases, as Tracy Fessenden did. Fessenden looked to Thomas Nast cartoons in Harper's Weekly in the second half of the nineteenth century. She suggested that equal access in common schools actually represented an ideal of Protestant uniformity, showing how an image of the common school as the site of uniting students of visually different racial and religious backgrounds in a dancing circle contrasted with the "Sectarian Bitterness" depicted in an image of the same children fighting. For my own project on character education, I could think about how educators and psychologists sometimes frame it as a reaction to an imagined moral decline of society, having to do with increased crime and promiscuity-two accusations that are often racialized (and sexualized, for that matter). I might also study cases about public schools around the same time period that did deal with race, like Brown.
These are some brief examples of how one law and religion project could look beyond the court's surface distinction between religious and secular to explore the how the court's construction of secular morality and religious morality was part of a historically exclusive civil religion. Though I have talked at length about Protestant morality codified in the law, I want to be clear that the specifics of each situation vary. The patriotic exercises in Schempp, later character education statutes, and the common school practices Fessenden described differ. Each instance is connected to a history of something like civil religion, but one reason to become aware of a civil religion complex is to use tools from our discipline to think about how examples highlight variations on a theme.
Tim Ruckle, PhD candidate, University of California, Berkeley
At the Religious Studies 50 Years after Schempp Conference, organized by Winnifred Fallers Sullivan and the Religious Studies department at Indiana University, I presented a paper exploring the ironies, tensions, and consequences stemming from the 1966 case of Calvary Bible Presbyterian Church v Regents of the University of Washington (Seattle Bible Trial). In this case, two fundamentalist ministers unsuccessfully sued The University of Washington (UW), claiming that its Bible as Literature course was in fact "religious" and therefore prohibited by the U.S. and Washington state Constitutions. It is the first case I know of, post-Schempp, which challenged the legality of a university course based on Separationist arguments. I raised the question of whether religious separation—as a matter of definition and law-is even possible.
There is ample evidence that, given our current understanding of the Establishment Clause, arguably unconstitutional practices are widely implemented in K-12 schools across the country, most especially in the South. Mark Chancey, Associate Professor of Religious Studies at the Dedman College of Humanities and Sciences at Southern Methodist University, has tirelessly documented this phenomenon. His paper at the conference outlined the storied history of the Dallas Bible course, which continued to offer high school credit for classes taken at local churches after the Schempp decision. (See his "Reading, Writing and Religion II," released earlier this year by the Texas Freedom Network Education Fund.) Ongoing resistance to Schempp and other separationist rulings, and a SCOTUS increasingly friendly to religion in the public square, suggest that Protestant hegemony is still muscular and active in the public square. At a time in which Protestant values pervade mainstream culture, it would seem that religious minorities, atheists, and Separationists should have access to the courts to enjoin schools from establishing or practicing religion in public schools. Yet I would like to suggest that, religious separation might be impossible precisely because we have no a priori knowledge of what "religion" is. Having the courts and judges determine what counts as religious orthodoxy is tantamount to having established churches and prelates do so.
Sullivan's The Impossibility of Religious Freedom (2005) offers a theoretical foundation for an exploration into the possibilities of religious separation in the United States. Though my work is less theoretically driven than historically minded, ultimately these discussions and court decisions centered not just on differences between epistemes regarding the appropriateness of religion in the public square, but fundamentally on what is and is not "religious." For instance, the school board in Schempp eventually and unsuccessfully argued that the required reading of the Bible without comment was not religious but an exercise in "secular moral instruction." In the Seattle Bible Trial, fundamentalist Christian litigants unsuccessfully argued that the study of the Bible was necessarily religious, and the literary criticism of the Bible, whether intentionally proselytizing or just "by accident," was indistinguishable from liberal theologies, and therefore not allowed in any form in publically financed schools.
The fundamentalists in the Seattle Bible Trail clearly believed the Bible as Literature course's use of higher (to them, "destructive") criticism was obviously a religious viewpoint. They enjoined the court to put a stop to it. Sullivan argues that "courts need some way of deciding what counts as religion if they are to enforce the laws," but questions whether that is possible "without setting up a legal hierarchy of religious orthodoxy". We might well ask the same question about religious separation. She adds, "Religion and law today speak in languages largely opaque to each other," as was seen in the efforts of the plaintiffs in the Bible Trial when they argued that state-sponsored courses which deny biblical inerrancy and/or infallibility speak to the very core of their religion. For Evangelicals, for which the Bible is central, and fundamentalists, for whom it is inerrant, this was self-evident.
The Religious News Service recently published an interview of Northwestern University's Elizabeth Shakman Hurd in which she argues that America's religious freedom outreach efforts may do more harm than good. Like Sullivan, Hurd shares a concern that "involves the social effects of emphasizing and privileging religion as a fixed, stable, and politically and legally meaningful category." T. Jeremy Gunn, in his article entitled "The Complexity of Religion and the Definition of 'Religion' in International Law," points out that the term "religion" remains undefined as a matter of international law. Thus, if religion is a fluid, socially constructed and unstable category-as we academics are inclined to argue-then how are the courts expected to define it in a legally meaningful and just fashion? In the Seattle Bible Trial, the plaintiffs argued that the state was reproducing a type of religion indistinguishable from the disenchanted theology taught by Harvard Divinity School (and elsewhere) and this did violence to their own understanding and practice of religion. If somebody's religion is always left out of the legal definition, is religious separation really possible?
In the Seattle Bible Trial, Mr. Wilson, attorney for the University, argued that not only was the course allowable under Schempp, but to grant relief in the case would seriously infringe upon academic freedom as protected and guaranteed by the First Amendment. His brief maintained that the appellants:
feel that any mention or study of the Bible in a secular context collides with their view of it as "the Revealed Word of God"... and, therefore, tends to erect a "religious" view contrary to their own. Their claims could only be satisfied by eliminating both the Bible and religion entirely from the University curriculum. The result would be the wholesale destruction of the central part of higher education: that of man's religious writings to the literature and conscienceness [sic] of the ages. (Brief for Respondent in the Supreme Court of the State of Washington, No. 39226 pp. 9-11. Emphasis added.)
The majority on the Washington Supreme Court ruled that the UW course met the Schempp criteria and that the Washington Constitution's Fourth Amendment did not add a stricter burden. However, following Sullivan's line of reasoning, if a constitutional right to academic freedom was located in the First Amendment and protected and guaranteed by the state, might this be a way out of definition of "religion" issue? And if so, could laws guaranteeing individual equality ensure that religious minorities, atheists, and Separationists have equal access to a public education?
Hayley Craigmiles, Religious Studies major, University of Missouri
As a Religious Studies major currently enrolled in a course entitled "Theories & Methods," I was interested in attending Religious Studies 50 Years after Schempp: History, Institutions, Theory to broaden my understanding of what it means to consider, analyze, and discuss religion from a religious studies perspective. The kind of academic rhetoric and discourse we have been observing and discussing in class between scholars such as Frazer, Tylor, Muller, and Turner was exactly what I was able to witness firsthand at the conference.
One of the main focuses of our class this semester has been the application of theories in our own formal research. We have been reading scholars' theories and ideas about various aspects within the study of religion, evaluating and analyzing their work, and deciding what about their approaches appeals to us and what does not-all in an attempt to determine our own method and style of research presentation within religious studies. By attending the Schempp Conference, I was not only able to learn about both the direct and indirect effects of the Schempp decision within the U.S., but I was also able to draw connections between the information presented and what I have been learning in class this semester. While at the conference, I found myself feeling like a true religious studies scholar-I was dissecting the numerous ideas presented by the panelists and plenary speakers, determining what I liked and disliked about their various approaches and statements, and brainstorming how I could use their work to support my own theoretical stance on a particular subject.
The Schempp Conference served as a great supplement to important concepts I have learned in religious studies thus far-both this semester and throughout my undergraduate career. Despite the numerous examples of academic discourse that can be observed in our assigned readings, there is no comparison to seeing such interaction in person. Fittingly, the Schempp decision promoted the study of comparative religion in state schools. It strengthened the foundation upon which I am able to study religion and apply the things I have learned in my course thus far this semester to the academic discourse I am presented with-whether it be speakers at a conference or theorists in a book.
Sarah Dees, PhD Candidate, Indiana University
In addition to fostering a conversation about the legal aspects of the teaching of religion in public schools and state universities, the Schempp Conference provided an occasion to discuss how to undergo the work of religious studies-how to approach, define, and theorize religion. These questions have been pertinent for departments of religion at public universities, whose instructors are expected not to teach religion, but to teach about religion.
One of the plenary speakers, Gerald J. Larson, described the development of Religious Studies departments in public universities during the tumultuous era of protest characterizing the 1960s. Larson noted the significance of the political atmosphere, which underscored the need for critical accounts of culture, for the academic study of religion. This was the same atmosphere in which scholars and students from diverse backgrounds-Native Americans, African Americans, Asian Americans, Latinos, LGBTQ individuals, people with disabilities, and women-were able to demand and secure institutional resources to create programs that focused on their identities, cultures, and histories. I was thus surprised when Larson suggested that the development of critical religious studies discourse since the 1980s-represented, he said, by the work of scholars such as Jonathan Z. Smith, Russell McCutcheon, and Timothy Fitzgerald-was undermining the academic study of religion. This critical religious studies scholarship seems, to me, to be a natural progression of the concerns and needs that animated the development of the academic study of religion in state universities in the 1960s. After a comment from Richard Miller, noting the diverse arguments advanced by the scholarship deemed problematic, Larson maintained that this critical scholarship was uniformly destructive to the academic study of religion. One audience member who agreed with Larson suggested that scholars in this camp do not actually study lived religion or religious communities, and thus have no basis on which to critique the academic study of religion.
It struck me that, as Miller suggested, the characterization of critical perspectives as uniformly damaging to religious studies is limited insofar as it disregards the many discrete insights of these theorists of religion. In addition, the contention that critically reflective scholars do not actually engage with religious communities is simply inaccurate. In fact, critical reflection on the history of religious studies-in the context of violent histories of colonialism-is incredibly important precisely because the study of religion, and ideas about diverse forms of spirituality and ritual practice, have impacted communities' lived experiences. My current research examines the systematic study of Indigenous religions and cultures undertaken by the Bureau of American Ethnology (BAE), a research agency funded by the federal government, in the late nineteenth century. Ideas about the supposedly "primitive" nature of Indigenous cultural and religious systems, as outlined in pages of the BAE's widely distributed reports, served as justification for assimilation policies that limited the ability of American Indians to legally engage in self-determined spiritual practices. Although the influence of the BAE was eclipsed with the development of academic departments of anthropology, their research program nonetheless set a foundation for the scientific and academic study of Indigenous religions.
Tomoko Masuzawa's work on the Euro-centric origins of the comparative study of religion has been influential in my investigation of historical anthropological scholarship on Native American and Indigenous religions. Taken together with Indigenous scholars such as Vine Deloria, Jr. and Linda Tuhiwai Smith, who attest to the indelible effects of extractive anthropological research on Indigenous communities, a clear need for critical histories of religious studies comes into view. The academic study of religion requires reflexive voices that encourage us to square the intentions of our work with its outcomes. For this reason, I appreciated Masuzawa's contribution to the Schempp discussion, a brief overview of the history of European education systems that predated our current system. Masuzawa reminded us that the academic study of religion grew out earlier models, some supported by the state and others privately funded-even before the nineteenth-century developments she has described elsewhere. Examining this history is critical for understanding our inherited ideologies, which directly and indirectly affect the communities we study.
A call for reflexivity should not mean that our research must cease, but simply that we should go about it (more) thoughtfully. We should aim to understand the history of the field, consider its effects on people's lives, and regularly reflect on our theories and approaches. In public universities, we may find ourselves haunted by the maxim to be critics rather than caretakers of religion. Of course, critiquing religious institutions does not negate caring for, say, humanity. And some may engage in critical appraisals of religion precisely because they care for humanity. But because individuals and institutions have perpetrated violent actions in the name of caring for humanity-or the pursuit of progress, or saving people from themselves-we must maintain an active conversation about the peripheries and contours of our scholarship. This was a significant point made by Charles Long in his plenary talk. Long's important scholarship reminds us that to signify-to represent and render spiritual activities-has always been a political activity exercised in situations of uneven power distribution. Long called on participants to ask themselves two important questions when going about their scholarly business: What are you doing!? And why are you doing it!? Our discussion of the Schempp decision throughout the weekend also involved the articulation of a third important question: How are we doing it!? Answering these questions requires us to think more carefully about our own positionality, the aims of our work, and the atmosphere in which we undertake our research.
I expect that discussions of the legacy of the Schempp decision will continue. In Bloomington, I welcomed the opportunity to engage with scholars whose work has been instrumental in evaluating the legal implications of the Schempp decision and the most recent chapter of the academic study of religion undertaken in public research universities. The complex history of the study of religion-from divinely sanctioned, to state funded, to legally authorized-is the shared foundation on which a variety of religious studies programs were built. And continued discourse about how and why we should study and define religion is the mortar that holds together multifarious projects undertaken as the academic study of religion.