See Infra

Digging at the confluence of culture and everything else

Monthly Archives: March 2015

A Brief History of American Religious Liberty Law – Part I: From Europe to the Bill of Rights

I started this post many moons ago as a way to explain what was going on in the Hobby Lobby. Like every other project that is meant to be a “brief history” it quickly spiraled out of control.1 So I left it alone, gathering dust in my drafts folder.

Then Indiana happened. And it turns out we’ve not advanced the ball at all as far as civic knowledge or civic purpose since Hobby Lobby. Once again, we’re talking about religious liberty and its place, or lack thereof, in our society. Once again, American journalists and politicians are proving themselves religiously illiterate.2 Now, fixing American journalism is a quest too quixotic even for myself. So I’m going to do my best to make you all a little less wrong. This post will cover up to the Bill of Rights. I’m going a bit deeper than typical treatments of the topic, but I am still covering a very long time period quickly. History is hard and causation is complex so on some level, you’re just going to have to accept my account will be imperfect. Caveat lector.

Bloody Europe

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As we have all been taught, in the beginning the Pilgrims and other religious emigrants left Europe in order to freely practice their religion. So they set for new lands far from their Kings and Queens where they could be left alone – sort of. The truth was, of course, more complex than that. Petty material concerns were interwoven with less than saintly religious motivations. There are many, many accessible sources on the web purporting to debunk the myths of the early American religious freedom, and if that is what you’re interested in, Google will lead you to those places quickly. The classic account is true enough for our purposes. It is lacking in important details. For starters, Europe was not a vague threat to the liberties of man. It was a bloody battleground of religious warfare.

The emigrants that undertook the arduous journey to the New World were fleeing a divided Europe. Europe has always been a relatively tiny place with too many ethno-linguistic groups in the business of slaughtering each other.3 They killed each other over land and over gold and for honor and because of factional conflict and because of soccer.4 That they also killed each other over religion should not surprise us. What is surprising is that they ever managed to stop killing each other.

The 16th century added a massive splinter faction (Protestantism) within Western Christianity to bloody thrust of European history. True to form, Protestantism soon developed offshoots, of which a third major player, Calivinism – or the Reformed tradition, was the most significant. These factions were made up of converts, not aliens. Where there was once one religion, there were now two or three major faiths vying for influence and control. The European religious wars involved territorial rulers fighting for the right to follow their religious conscience, and then impose it on their subjects. There were spurts of religious tolerance, but they were failed experiments or the result of inattention, not permanent peaces. Even formal agreements, like the Peace of Augsburg, named a small number of tolerated religions, excluding the rest. Christian religious pluralism grew in Europe despite the best attempts of princes and kings suppress it. In 1618, the failure of the Powers to contain Christian pluralism was punctuated by the Thirty Years War. The German lands turned to mud as the Catholics and Protestants of Europe fought out their religious and regional rivalries to the point of exhaustion.

Pilgrims and the Colonies

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The Virginia colony was formed after most of the religious wars, after considerable religious upheaval in England and just a few years before the Thirty Years War began. When the puritans came, they took the lessons of Europe with them. Freedom, yes – but the freedom to impose their religion on their community and any Amerindians that fell under their baleful eye. This strikes us Moderns as barbaric, but it has its own cold internal logic. The puritans were playing for infinite stakes. What value is tolerance before the fires of hell?

Maryland was founded in 1634 by Cecilius Calvert as a Catholic refuge for the Catholic English fleeing England. Now, Maryland may have been a Catholic refuge, but it was still under Anglican rule, and so Protestants soon flooded the colony. The governor encouraged the colonists to leave their religious rivalries back in Europe. For a while, they did. But despite the colonists’ hopes, Europe’s troubles would reach across the Atlantic. The outbreak of the English Civil War disrupted the peace in Maryland and threatened Calvert’s grasp on power and civic order. So Maryland’s law enshrining religious tolerance came to pass in 1649, but only for Trinitarians. It was a deal between the Catholic minority leadership and the Protestant majority populace. It would last only five years before Protestants rescinded the act and drove the Catholics underground.

There were other, more successful religious tolerance experiments in the Colonies. Roger Williams repeatedly dissented against the powers of his day and was eventually sentenced to death. He fled to what is now Rhode Island and established a sanctuary for dissent and seperationism. There were other small experiments in religious toleration enshrined in law: Connecticut, New Jersey and especially Pennsylvania. These attempts were more successful than Maryland, but largely because they were driven by dissidents. The colonies had adopted European styled religious persecution, and so they fled to form other states. Religious tolerance was not a natural result of a plural people. It was the desperate gambit of dissidents.

Founding and the Religion Clauses

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Fast forward to 1760s. Led by notables from the landed, educated classes, a bunch of colonial yeomen, small business owners and craftsmen revolted against the British powers (and their local allies).5 Revolt becomes a revolution and to everyone’s surprise the Americans win.

At the founding, there was a very weak central government and several powerful states. The majority of those states had official state religions using their sovereign authority to force it upon their populations, not days from fighting a bloody war to throw off tyrannical power. There was little doubt they could do so, even if some people thought it was a terrible idea. People like James Madison.

Now the early Americans were very much cognizant that religion can be both a rival and an ally for state power, so it was a bit of a tug of war between those imperatives. So while a part of the Virginia legislature Madison laid out his case against state interference in religion. The Memorial and Remonstrance is a great document and you should read it. But most of you won’t , so here is the summary:

  1. Religion is of the utmost importance and civil society has no place in messing with it.
  2. Favoring one religion is both unfair and liable to bite you in the ass.
  3. Civil Judges are a terrible choice for arbiter of Religious Truth.
  4. And really, Christianity is doing just fine without government. In fact, it does pretty poorly as a part of government and does much better when there is competition among religions.
  5. Look, religious feeling is remarkably resilient to government declarations to the contrary. Everyone you’re not favoring tends to get surly and starts avoiding your state. A lot of them just refuse to comply.
  6. And you know, we’re just now getting along with each other, let’s not rock the boat and tempt inter-religious conflict. Just look at how that worked out in Europe! Blood and wailing orphans everywhere.
  7. Is this really necessary and popularly supported?
  8. I meant what I said earlier. Religion matters and conscience matters and we ought not mess with it

In case any of you thought otherwise, we have not in fact come up with any better arguments since. Madison’s side won decisively.

Four years later, Madison heads to the Constitutional Convention, worried, like many of his fellows, about the state of the republic. See, the government was weak, had a lot of war debt, and was having a hard time raising the taxes to pay it all off. So, a stronger central government it was and the Bill of Rights was created, in part, to allay the fears of those afraid of the central government.6 Among those early important rights was this little line:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Yeah, that was Madison at the helm.7

So, all that state religion stuff is gotten rid of, right? Wrong! The United States Congress could make no law establishing religion or prohibiting the free exercise thereof. The States could do whatever they pleased.

We’ll pick back up next time with some beleaguered religious minorities: Mormons, Catholics, Jehova’s Witnesses and the Amish.

Footnotes

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Jeremy Clarkson, Oisin Tymon, and the Disposability of Men

Several of my Facebook friends, along with the rest of the Internet, have been lamenting the death of Top Gear. Top Gear is not actually dead, but it is losing its biggest star in host Jeremy Clarkson. Why? Well, the BBC internal investigator summed it up roughly like this:

Oisin Tymon was the victim of an unprovoked physical and verbal attack [by Clarkson]. It is also clear to me that Oisin Tymon is an important creative member of the Top Gear team who is well-valued and respected. He has suffered significant personal distress as a result of this incident, through no fault of his own.

I find it a little distressing that the investigator had to go out of the way to underline Tymon’s value on top of his innocence. As if he was predicting that people would savage Tymon otherwise. Well, they did anyway. Let’s lay this out using the commonly accepted facts:

1. Clarkson and the rest of the Top gear team were out and about. A hotel was waiting for them. The kitchen staff was kept late to have hot food ready.

2. Clarkson decides to dawdle and drink at a pub for two extra hours.

3. The kitchen staff goes home.

4. Clarkson arrives at the hotel and is told there will not be any hot food and he’ll have to have a cold plate.

5. At this point he physically battered1  and verbally abused a junior producer, Oisin Tymon.

6. The physical attack lasted about 30 seconds with Tymon offering no resistance, but the verbal abused continued afterward. This included offensive language and threats to fire Tymon.

7. Tymon, ” shocked and distressed by the incident” drove himself to get medical care all the while under the impression he had just been fired.

8. Clarkson apologized.

9. Clarkson was told his contract would not be renewed. He is broadly expected to be able to find continued employment as a television presenter for a rival channel.

Aside from the death threat nuts, there are people who are focused on lamenting that Top Gear will be dead to them, or perhaps unbothered by his assault, or urging that his apology should be taken seriously. All in all, a waffling, nuanced take.

Would it have been the same if Tymon had been a woman? (Bracket the very real problem of whether or not women are believed) Look through the facts again: a popular television host batters one of his staffers for failing to procure a hot meal for him. She is verbally assaulted, and fired. The host apologizes profusely but is still fired anyway. He’s still going to have a job.

I think that provokes a different reaction in a lot of people. It provokes a different reaction in me. It shouldn’t.

As I’ve alluded before, I have a complicated and troubled relationship with feminism. I count self identified feminists among my closest friends, but I’ve never called myself a feminist and I shall not call myself a feminist. I have, however, learned a lot from them, and I owe them an intellectual debt for two concepts found in feminist theory: the Patriarchy and the disposbility of men.2 Let me explain the concepts at the rudimentary level I understand them. At the top of a society are a group of powerful, old men. The patriarchs. The fathers of fathers. And they support and are supported by a series of normative assumptions. They control women by placing them in a lower status and primarily restricting their sexual contact and fertility. They control men by controlling access to women, and thereby access to sex, and thereby access to heirs, all while making production of male heirs the path to status and power. And here is the crucial bit for our purposes they make men who have not achieved status risk their lives for it. The archtypical example is sending young men off to die for King and Country with the promise that if they kill enough of the Others, they come back to riches and a sweetheart. Until that happens, until they have the status of the Patriarchs sending people off to die in wars, they are disposable.

Now, I make fun of the capital P-Patriarchy concept a lot, because like all theoretical superstructures, it takes a core insight and quickly falls off the rails. Also, when your in-laws are part of an honest to good lower case ‘p’ patriarchy, the Patriarchy seems like a stretch. But it, along with the disposability of men, are good-enough models3 of examining how the powerful in a society are going to be invested, overtly, covertly, and unconsciously in certain normative assumptions. That, in turn should remind us that we are often invested, overtly, covertly and unconciously in normative assumptions and some of those are going to bite us in the ass. The fact is we’re not bothered by violence being done to men nearly as much as we are bothered by violence done to women, regardless of perpetrator, the disparity happens to be worse when it is cross-gender violence. 

The problem is not that we make too big a deal out of violence done to women. The problem is that we do not make big enough of a deal out of violence done to men. We, and here men are the primary actors in their own maltreatment, have bought in on some level to the disposability of men. Not to the point where we fling them away to die in foregn wars for glory, thank God, but to the point where we cast aside their feelings, their dignity, and their right to hold a job without being battered. We toss their names out of the stories we write about the perpetrators, men with status.

It isn’t that it is wrong to be sad that a thing you enjoyed will no longer be the same. But you should take a moment to remember that there is a real human being, one in a vulnerable position, that was harmed. That has to matter, at least for a moment’s reflection more than your TV show. And if it doesn’t, maybe you should think about why.

Footnotes

A brief, open letter to Superintendent Joan Carbone: Resign

Ms. Carbone,

In light of your cowardly actions and failure to discharge the most basic of your duties, I urge you to resign. I am of course referring to the events recently reported in local news and humming along in social media. One of your charges, a student, gave the Pledge of Allegiance in a non-English language. This language happens to be the fifth most popular language in the world and is the liturgical language of the second most popular religion in the world.

It happens to be called Arabic.

I applaud all of the students and teachers who arranged for a student to read the Pledge in a multitude of non-English languages, including and especially this one. Our schools are the very place for learning and exposure to the complexities of a large and diverse world. So too it sheds light on the complex make up of the United States of America. At the very least it was a civic exercise in the the basic liberties found in each citizen’s relationship with their government. That is no small thing.

Which you ruined.

As you surely must know, Education is a sacred charge, and the education of children all the more so. Educators, be they teachers, support staff, or administrators are entrusted not only to shape young minds, but to protect them, and their liberties, as they grow into citizens capable of protecting themselves.

In issuing an apology for allowing a student to freely speak you have failed that charge.

I have read that some feelings have been hurt, because these persons have been harmed directly (or indirectly) by an Arabic speaker, or perhaps someone who simply spent time with Arabic speakers. For this, the speaking of the pledge was blamed as being divisive. Your statements said that the pledge managed to cut the school into two.

No.

It was not divisive of a child to speak a pledge in a language of their choice. It was divisive to place the harms caused by countless others on the shoulders of a child. It was their choice to divide the school into those supporting a child who did nothing wrong and everyone else.

And what side did you choose?

Perhaps it is appropriate for a television pundit or histrionic parent to place their particular sensitivities above the right of a child to speak and to partake in education. It is never appropriate for the educator. Your job, at the end of the day, is to defend your students. Instead, you apologized for letting your student do something right.

If you think you failed your job by letting a student speak, you have no business having your job.

Resign.

Sincerely,

Kevin Chen