Note: this two-part post about teaching a course on “Religion and Law in America” was co-written with Charlie McCrary and originally appeared on the Religion in American History blog.
This semester, we will be co-teaching a section of Religion and Law in U.S. History. We’re both quite fond of the subject matter, and we thought it might be interesting to take a day to talk about why scholars of American religious history may find it beneficial to pay attention to American legal history, and more specifically to the history of religion law.
The intersections of law and religion provide an important data set for historians of American religion. They allow for attention to institutions and state power, especially in conjunction with more common ARH concerns like minority voices, secularism, pluralism, and disestablished “lived” religion. For us, there are at least three reasons the study of law and religion is compelling: (1) it’s a way to do tangible studies of historical formations of the category religion; (2) the object of study provides a framework for a structured approach to history which allows for synthetic, grand narratives by paying attention to institutions; and (3) it helps scholars of American religion incorporate debates about the category “religion” in religious studies by taking the state’s definition of “religion” as its frame of reference.
We would like to linger on this last point for a moment. There is a way in which attention to law and religion subverts many of the theoretical issues in the study of religion in America. The historically problematic and theoretically contested category “religion” and what it may or may not signify can be set aside (in a sense) to focus instead at how the law defines religion. The question of whether “religion” exists—whether it is in fact “solely the creation of the scholars study”—can be placed on the backburner because the taxonomic order being investigated is one maintained, by lawyers, judges, legislators, etc.–not by scholars. Thus, in this way, the question of whether and how one can talk about religion can inform the work (and the course) without bringing it to a halt. In addition, by tracing the way in which the law strategically selects some things as religious and others not, scholars of American religious history can also begin to track how the law conceptualizes “secular” areas in which religion is seemingly absent. Indeed, the very fact that the law—and institutions integral to it like the Supreme Court—solidifies certain spheres of social life as completely (and unironically) secular challenges historians of American religion to interrogate their theoretical frameworks. That is to say, scholars should differentiate between their own frameworks and their data’s, a tricky and technical task when our theoretical terminology is also, at the same time, a “native term.”
Legal history is the history of contestation. By definition, it is interested in who “won,” who “lost,” and why it happened the way it did. It would be difficult to write any legal history without this attention to winners and losers. As a result, American legal history is predisposed towards investigating minority groups, since they were more often than not on the losing end of these legal battles. Any group that was not a member of what David Sehat terms the “Protestant Establishment” would be applicable: Mormons, Catholics, Native Americans, Scientologists, and Jehovah’s Witnesses have all left their impression on the court system, and legal history is one mechanism by which historians can track these groups. This is the reason Sehat defines his narrative as one of American religious history “through its dissenters.”
Of course, legal history can also track the rise and fall of various Protestant groups, particularly in the early nineteenth-century post-disestablishment battles over taxation, incorporation, and church property. Through these battles, we can observe the category “religion” being legally created and recreated. One caveat to the legal history approach, though, is the somewhat limited nature of the data set. Even with such a wealth of sources, including religious-freedom court cases from the local to federal level, as well as less-studied issues like tax codes, some groups still remain absent from sources. For instance, some were so extremely out of power that they were not able to contest, or had to have others contest in their stead. The most prominent among such actors were enslaved African-Americans, who often had little to no recourse to the law. Nevertheless, slavery and the personhood and rights of slaves (if not often slaves as actors themselves) were ever-present in nineteenth-century legal debates and cases, such as Dred Scott v. Sandford (1857), as well as various attempts by state and colonial legislatures to regulate slave life.
The working thesis of the course is this: the operative understanding of “religion”/ “religious” informing the framers of the Constitution is far narrower than most Americans’ understanding of what the terms mean today. This tension has been evident for a long time, prominently tested in cases like Reynolds v. United States (1878), which raised questions like, “is polygamy religious?” and “is religious action protected–or just beliefs?” For obvious reasons, Jefferson and Madison weren’t thinking about polygamous Mormons. In the last sixty or seventy years the United States has undergone significant changes to its religious demographics, from predominately Protestant to “Tri-Faith” to “pluralist.” How can the law, written in the late eighteenth century and first tested and defined in the nineteenth, still work in this environment? Slippery pluralism and a hazy ambivalence as to what counts for Americans as “religious” create real problems for the black-and-white world of law. This problem was glaringly evident in recent dissents by Justices Sotomayor (to Wheaton) and Ginsburg (to Hobby Lobby), which rested on anachronistic, narrow, and ultimately inadequate definitions of what “religion” means and who counts as a “religious organization.” Simply put, religion law is not well equipped to deal with the fact of religious diversity in a “pluralistic” nation–a reality that, through disestablishment and religious freedom, the law itself was instrumental in creating.
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