Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 21, 2011

The Supreme Court and the Field of Religious Studies

This is an essay by journalist Nathan Schneider with some interesting observations, but also some parts that I think are mistaken.  The point of the piece is to explain why religious studies is an important and useful field for the problems of our day.  The strangest and most anachronistic argument in it is that religious studies came into its own as an academic discipline pretty much as of 1963 with the US Supreme Court's decision in Abington v. Schempp

In Schempp, the issue was the constitutionality of daily devotional readings from the Bible in public schools.  The Court held that the practice violated both the Free Exercise and Establishment Clauses.  In dicta, Justice Clark (writing for the majority) also said this:

In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization.  It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.  374 U.S. at 225.

What that has to do with the origins of the discipline of religious studies is mysterious to me.  To be sure, the study of religion as a distinct discipline is of comparatively recent vintage.  But it was going on at least a century or more before Justice Clark got around to writing the Schempp majority.  Eminent and learned writers like Schleiermacher, and then later Troeltsch, Durkheim, Weber, and many others were writing about religion qua religion extensively.  One might object that these are not American writers, but one could then point to Harvard comparative religion professor Wilfred Cantwell Smith's magisterial The Meaning and End of Religion, first published in 1962, which paved the way for much of the religious studies scholarship that exists today (Smith was Canadian, but lived and wrote in the United States for a large part of his career).  Or one could point to Mircea Eliade's wonderful, The Sacred and the Profane (first published 1957).  If people of Eliade's and Smith's stature had already by 1962 made a career of the study of religion, it suggests that religious studies was already a mature field of academic inquiry by the time Schempp rolled around.  Even the structuralist cultural anthropologist Claude Lévi-Strauss did his influential work in Tristes Tropiques before 1963.  And we haven't even talked about William James yet, writing way back when it was Holmes's court and Justice Clark was barely born. 

The other odd feature about relying on the Schempp dictum as a kind of foundational moment for the field of religious studies is that it assumes that academics take their cues about what is worth studying from the Supreme Court.  That isn't even true in law any more, let alone in other disciplines.  The premise is that non-legal academics actually know about Supreme Court dicta, and that they care enough about it to fashion their scholarly pursuits in conformity with what the Court thinks is worth studying. 

That seems to me to get things backwards.  The Supreme Court is generally (and rightly) a follower, not a leader.  It does not shape the culture, but instead perceives the social trends and tendencies of the culture and attempts to conform itself to them.  That was the thesis of the historical jurisprudents of the early 20th century, and it strikes me as exactly right in this and many other circumstances in religion clause law. 

If Justice Clark's dicta demonstrates anything, it isn't that all of a sudden the Court decided that it ought to provide intellectual room for religious studies scholars the world round by brilliantly conceiving the distinction between teaching religion as true and teaching about religion in academic fashion.  It's that the Court finally got around to perceiving, and recognizing in law, a distinction which was all around it in the academic customs and cultural mores of society that already existed.    

UPDATE: Patrick O'Donnell has some typically learned comments about the history of religious studies here.


DeGirolami, Marc | Permalink

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