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Church & State

By Han Lee



Jerusalem. Taken by Berthold Werner.

The University of California, Hastings College of the Law is a prestigious establishment of around a thousand students. Based in the Civic Center neighborhood of San Francisco, Hastings College boasts alumni from across the political spectrum: from conservative news anchors, tech CEO’s, and public defenders. The student body is thus varied, hosting a wide range of student organizations- from the Black Law Student Organization to the Hastings Food and Wine Law Society. One of these organizations, the Christian Legal Society (CLS), might be an obvious addition to this list at first glance. The Hastings College chapter was one of 120 law school branches of the national Christian Legal Society[1], working to recruit aspiring young lawyers for its legal branch, the Center for Law and Religious Freedom. The Center itself is a profound legal force, submitting multiple amicus curiae[2] briefs on religious liberty and freedom cases, representing many parties in said cases, and aiding relevant legislative action. Being a religious organization, therefore, its charter requires prospective members to attest in writing that "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son, is Lord of my life."[3]

​In what would come to be this written affirmation’s counterpoint in the fierce legal battles to come, Hastings College’s Non-Discrimination policy stated clearly that all registered student organizations must allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs." Upon applying for approval as a Registered Student Organization (RSO) at the college, the CLS chapter’s application was soundly rejected.  The chapter promptly sued faculty and members of the administration. Seeking exemption[4] from this particular policy, the local chapter brought its parent organization’s formidable legal talent to bear, citing violations of its rights to free speech, expressive association, and free exercise of religion, rights that are codified in the First and Fourteenth amendments of the United States Constitution. ​On the opposing side, Hastings Outlaw, an on-campus LGBTQ student organization, and the Hastings administration found representation in the National Center for Lesbian Rights, a prominent national organization championing LGBTQ rights, and Latham & Watkins, a legal firm of high repute.  The case, following its initial appearance in a California district court, progressed to the U.S. Court of Appeals for the Ninth Circuit upon appeal. Eventually, it came to be heard at the highest legal institution in the nation- the Supreme Court of the United States (SCOTUS). And each time, CLS found previous rejections of their claims affirmed.  Representing the majority opinion, Justice Ruth Bader Ginsburg wrote that granting the CLS chapter an exemption from a policy advocating inclusivity would then set an unacceptable precedent. An exemption, she clarified, would in the future require Hastings College and its RSO program to then deliberate, on a case-by-case basis, "whether a student organization cloaked prohibited status exclusion in belief-based garb". This would arguably depreciate the efficacy and value of such a policy in the first place.  Furthermore, she concluded that the school’s policy was viewpoint-neutral, invalidating CLS claims that said policy was religiously based and thus a violation of its First Amendment rights.[5] Though SCOTUS was correct in its decision given the case’s underlying parameters, CLS v. Martinez[6] laid bare a potentially worrisome trend of the 21st century- seemingly inane secularism being deployed as a nom de guerre for abandonment of religious rights. This abandonment lay not with the evangelical fervor of Christian America, all a scatter in the 21st century culture war, but rather evinced a purposefully amnesiac attitude in the current century towards our nation’s inextricable and flawed coupling with religion since its inception. ​This coupling is an unresolved confliction between faith, ethnicity, and class. ​


IN PURSUIT OF GODS AND MASTERS

“We go,” wrote Francis Higginson, a Puritan minister, “to practice the positive part of church reformation, and propagate the gospel in America.” Having joined the Massachusetts Bay Company in 1628, Higginson and many others took part in the Puritan diaspora, fleeing persecution in England to settle at the Massachusetts Bay Colony in 1629.[7] Much time is spent amongst scholars on the mistakes of the Puritans- a Protestant Christian sect that found itself on the losing side of an ideological debate with the Anglican Church of England- who proved to eventually exhibit much of the same violent, exclusive zealotry that had forced them from England in the first place. But an oft ignored facet of this historic religious replanting is the laying of a powerful seed in the then formative American experiment- an ideal that espoused religious practice with no fear of unlawful interference by any power of man. Such allowance of practice in law, then, would ostensibly flourish in perpetuity under the bright auspices of America’s idea of freedom. The protection of said religious liberties would come to fruition ad infinitum with the actions of our founding fathers in the tail end of the decade of 1780. The Articles of Confederation had ended in deplorable failure, proof that stricter edification of the rights of the citizenry and states were sorely required. It was here that great Americans deliberated and produced the United States Constitution, a legal framework and Delphic oracle that persists to this very day.



The signing of the United States Constitution. Public Domain.

PROTECTING RELIGIOUS LIBERTY

Ensconced within the First Amendment of this treatise states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” ​Thus, reads the Establishment clause,[8] one of a handful of ratified verses that firmly defend the notion of religious liberty. Therefore, it is here, within these clauses, that Americans have long contended with the lines between church and state. Our nation, in a murkier fashion, has always rested upon the laurels of an age-old tradition- a divine mandate. Manifest Destiny, stained as it was with inexcusable bigotry and the ignominious slaughter of untold numbers of indigenous peoples, spoke of a God given mission for the United States of America to spread its dominion to the Pacific. ​John O’Sullivan, a popular columnist at the time, coined the term Manifest Destiny, declaring that it was the invevitable “fulfillment of our manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions.”[9] Our nation, in a murkier fashion, has always rested upon the laurels of an age-old tradition- a divine mandate. Manifest Destiny, stained as it was with inexcusable bigotry and the ignominious slaughter of untold numbers of indigenous peoples, spoke of a God given mission for the United States of America to spread its dominion to the Pacific. ​John O’Sullivan, a popular columnist at the time, coined the term Manifest Destiny, declaring that it was the invevitable “fulfillment of our manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions.”[9]


FAITH, SECULARISM, RACE, POLITICS

​Enter the origins of our miasmic century. Divisiveness left suppurating since Reconstruction provided reason for endemic racism and its slew of social, economic, and cultural woes to remain entrenched in the national fabric. This very racism, an ideology of the same vein as Lt. Colonel Custer, proceeded to entangle itself with politics and policy.

We all know very well of lynching, of the Klan, and of the violence of white Americans in the century before this. We know of Asian American internment, of institutional wars against African American equity, of Huey Newton and Dr. King, as well as the subsequent crushing of the Civil Right’s movement. As this all transpired during the late 19th and 20th centuries, a political transformation occurred in its midst.  The Democratic party, long enamored with Jeffersonian agrarian politick suddenly gave rise to a post-Vietnam, anti-Nixonian host of young Senators and House Representatives.[10] They drove out the old guard, shifting the party base towards Chicanos, Latin Americans, Asian Americans, and African Americans.

But progressivism, forever the heel-or-brought-to-heel of white Americans, tired quickly of this. We can observe a clear line-in-the-sand moment between races and religions at the passage of the Voting Rights Act. It served as a final concession for many white, moderate clergymen from the North, yet only as a beginning for many persons of color in the Civil Rights Movement of the time- including many members of the African American clergy.[11] Thus spake Zarathustra. An eternal recurrence of the same, yet unique altogether, shaped strangely by strange America. The 80’s onwards serves as an acute exhibition of the acceleration of time, containing both the near apotheosis of Reagan and the poison of Clintonian Neo-Liberalism. Alongside the erasure of mainstream and meaningful minority driven religious activism[12] in this era, the advent of the digital age has proven itself as both an unprecedented encyclopedic resource and as yet another stratifying tool.



The US Capitol Building. By Martin Falbisoner.

THE AGE OF SKEPTICISM

CLS v. Martinez serves as a catalyst for the modern-day confliction between faith, ethnicity, and class. With the Supreme Court verdict in 2010, the case turned out to be indicative of the manner in which secularism and faith were beginning to stand opposed to each other in institutions of higher learning.[13] It is indisputably a positive trend, that the United States has begun to recognize and affirm the rights of many marginalized societies in our schools. However, as our nation’s history has proven, to do so while mitigating the religious liberties enshrined within our laws disrespects the relationships- however positive or negative- that religion has maintained with near every other facet of American society.  ​The rise of Quakerism and its attendant non-violent philosophy. The rise of Mormonism and its fascinating relationship with persecution, cultist schism, and disputes with the federal government. And more recently, the socio-religious revanchism of the American evangelical right. 

​By wielding secularism as a sword, we collectively proclaim our preference for forgetting our past, rather than acknowledging the difficult societal questions that religion lays bare in our present. This is a pernicious route, once that remains unsolved, and I fear will worsen before much is done about it. For now, we must recognize America’s inextricable entanglement- of God and Country- for better, or for worse. 

ANNOTATED REFERENCES

[1] Liu, Joseph. "In Brief: Christian Legal Society v. Martinez." Pew Research Center's Religion & Public Life Project. April 06, 2010. Accessed March 20, 2018. http://www.pewforum.org/2010/04/06/in-brief-christian-legal-society-v-martinez/ [2] Meaning “friend of the court” in Latin, amicus curiae legal briefs are submitted by persons or parties not directly involved in legal cases with the intention to influence the court’s decision. Also known as amicus briefs. https://www.law.cornell.edu/wex/amicus_curiae [Accessed 18 Apr. 2018]. [3] CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,HASTINGS COLLEGE OF LAW v. MARTINEZ. April 19, 2010. Accessed March 20, 2018. https://www.law.cornell.edu/supct/html/08-1371.ZS.html. [4] The first such time a student organization had requested an exemption from the Non-Discrimination policy since the policy’s adoption in 1990. The general language of this policy has been adopted near universally by most law schools. Christian Legal Society v Martinez (2010). Accessed April 19, 2018. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/clsvmartinez.html. [5] Epstein, Richard A., Roger Pilon, and Ilya Shapiro. "Christian Legal Society v. Martinez." Cato Institute. February 03, 2010. Accessed March 19, 2018. https://www.cato.org/publications/legal-briefs/christian-legal-society-v-martinez. [6] Leo P. Martinez was a professor of law at Hastings College. He was sued along with several members of the college administration. Christian Legal Society v. Martinez: Frequently Asked Questions." FIRE. January 17, 2014. Accessed March 20, 2018. https://www.thefire.org/christian-legal-society-v-martinez-frequently-asked-questions/. [7] Approximately 21,000 Puritans fled to North America in total. Puritan Reasons For Leaving. Accessed April 18, 2018. http://www3.gettysburg.edu/~tshannon/hist106web/site15/bobs/prfleaving.htm. [8] Carlson, David. "Establishment Clause." LII / Legal Information Institute. June 03, 2017. Accessed April 19, 2018. https://www.law.cornell.edu/wex/establishment_clause. [9] The American Yawp Reader. Accessed April 16, 2018. http://www.americanyawp.com/reader/manifest-destiny/john-osullivan-declares-americas-manifest-destiny-1845/. [10] Colloquially known as the “Watergate Babies.” Stoller, Matt. "How Democrats Killed Their Populist Soul." The Atlantic. October 24, 2016. Accessed April 18, 2018. https://www.theatlantic.com/politics/archive/2016/10/how-democrats-killed-their-populist-soul/504710/. [11] The Atlantic. "The Whitewashing of King's Assassination – The Atlantic – Medium." Medium. March 09, 2018. Accessed April 18, 2018. https://medium.com/the-atlantic/the-whitewashing-of-kings-assassination-a215e04c37e7. [12] The Atlantic. "The Whitewashing of King's Assassination – The Atlantic – Medium." Medium. March 09, 2018. Accessed April 18, 2018. https://medium.com/the-atlantic/the-whitewashing-of-kings-assassination-a215e04c37e7. [13] Denniston, Lyle. "UPDATED: Court to Rule on Student Religious Rights." SCOTUSblog. August 30, 2010. Accessed March 19, 2018. http://www.scotusblog.com/2009/12/court-to-rule-on-student-religious-rights/.







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