I was recently asked to speak about the current state of US religious freedom law. I guess it somehow seemed appropriate to do that in Indiana—at ground zero in the culture wars, where religious freedom seems to have gone to die. I used the occasion to address the peculiar relationship that religious studies as a field seems to have with the Supreme Court and its decisions—indeed, with religious freedom, American style.
It is surprisingly common for religious studies scholars, particularly, but not exclusively, those teaching at US public universities, to define their work with reference to the jurisprudence of the First Amendment. Not infrequently, they point very specifically to the Court’s 1963 decision in Abington School District v. Schempp as the authorizing text for religious studies as a field. (See, among many recent examples, Jonathan Sheehan on “Why We Should Teach Theology in the Public University” and Ivan Strenski’s review of the Norton Anthology of World Religions in History of Religions.) As my colleague, American religious historian Sarah Imhoff, tells it in her recent Journal of the American Academy of Religion piece about the Schempp decision, many religious studies scholars seem to believe that “The Supreme Court, like the God of Genesis, came down and created by separation. Earth from sky, land from water; the teaching of religion from teaching about religion.” In other words, we seem to believe that it is law—or maybe, very specifically, the Court—that properly defines our job.
I have long found this use of the Schempp decision to be a curious and problematic foundation story. I will argue here that we should refuse this mythical moment of creation for the sake of our scholarly independence, our intellectual coherence, and our students.
Abington School District v. Schempp
To begin with, and not inconsequentially, Schempp—and its companion case brought by Madalyn Murray O’Hair (the notorious atheist activist)—actually concerned Bible-reading mandates for public primary and secondary schools. It was in part a follow-up to the Court’s disastrously received decision the previous year in Engel v. Vitale, invalidating the New York Regents’s school prayer. The Schempp decision neither addressed nor changed the law with respect to the teaching of religion in colleges and universities. The teaching of or about religion in higher education was simply not an issue in the case.
The question presented to the Court in Schempp was the constitutionality of Maryland and Pennsylvania laws requiring morning Bible reading in public elementary and secondary schools; the Court held those laws to be an unconstitutional establishment of religion. The frequently quoted words from the decision that are used by religious studies scholars to describe their work, “teaching about religion, as distinguished from the teaching of religion,” appear not in the majority opinion but in Justice William J. Brennan’s long, ruminative concurrence, and are followed immediately by “in the public schools.” The majority opinion, also speaking of the public schools, insists that “Nothing we have said here indicates that . . . 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.” Justice Brennan does talk about colleges and universities, but only to contrast them to public schools where he saw a need for protection of vulnerable children from the dangers of religious coercion. Brennan assumes that colleges and universities are different because the students are adults and because student presence there is voluntary. A concern for children can be seen across the Court’s religion-in-school decisions.
Not only were the practices of public universities not before the Court in Schempp, but, as Imhoff shows, religious studies as a distinct field in public universities in the United States did not in fact originate with the decision in Schempp and neither did the distinction between teaching religion and teaching about religion. She points out that, “Depending on the criteria for counting, somewhere between twenty and sixty percent of public colleges and universities already had an official religious studies curriculum by the time Schempp got to the Supreme Court.” And some scholars of religion were already making the distinction between teaching religion and teaching about religion.
Religious studies in public universities did expand and flourish in the sixties. Indiana University’s department, for example, was founded in 1965, bringing into the University and expanding what had previously been the Indiana School of Religion, a school which shared some faculty with IU and where IU students had been able to take courses for credit. Historians have noted increased student interest in, as well as increased funding for, religious studies in the mid-twentieth century. Educational theories about the need to teach to the whole person played a role. Also, a Cold War focus on the necessary connection between what was called Judeo-Christianity, pluralism, and democracy, underwrote an expressed need for better education in religion.
At the end of her article, Imhoff speculates that the enduring success of the Schempp origin myth among religion scholars can be explained in various ways: by the idealization of a countermajoritarian Court by academics after the decision in Brown, by a persistent effort to avoid engaging more problematic nationalist explanations, and perhaps because it continued to offer the pretense of a necessary field moving in a progressive direction. Surely taken together these explanations go a long way to account for Schempp’s continued popularity and apparent authority—but each has become a bit tarnished over the ensuing half century. The Court’s luster has dimmed. The narrative of US religious exceptionalism has less persuasive power than it once did. And the progressive promise of an irenic and apolitical religious multiculturalism has also taken some hits.
But beyond these political reasons for wanting to revise our story and position religious studies a little differently within the academy and the broader social field, I want to explore the intellectual abdication involved in giving over our responsibility to the Court. How does the ritual invocation of Schempp involve us in avoiding the ongoing work that we need to do?
The Bible and the Public School
Let’s go back to Schempp and look at the case with twenty-first century religious studies eyes. What was at stake in Schempp? What exactly were the Schempp and Murray children—and their parents—complaining about? Was it religion that was the problem? And who were the religious experts who testified in those cases and what were they saying?
The relevant Pennsylvania statute provided that “At least ten verses from the Holy Bible shall be read, or caused to be read, without comment, at the opening of each public school on each public school day, by the teacher in charge.” Bible-reading had been common in public schools since their inception more than a hundred years earlier, although never entirely uncontroversial. Lawyers for the schools argued that “a reading without comment of ten verses of the ‘Holy Bible’ . . . does not effect, favor or establish a religion . . .” but that it is, rather, “a substantial aid in developing the minds and morals of school children.” Their expert, Luther A. Weigle, described by the Court as a Bible scholar and Protestant minister, testified that the Bible was non-sectarian. The Bible verses, the lawyers argued, had a secular purpose.
The Schempps argued that the school’s practice was an establishment of religion. Both parents and children testified at the trial that they attended a Unitarian Church and that they objected to the morning exercises because such a practice involved a “literal” reading of the Bible. They believed that the verses, when heard alone, had an inescapable and pernicious religious force that needed to be tempered by an ecclesiastical context. Testifying in support of the Schempps was Dr. Grayzel, a Jewish historian and rabbi, who, at the time, was director of the Jewish Publication Society of America. He said that “if portions of the New Testament were read without explanation, they could be, and in his specific experience with children Dr. Grayzel observed, had been, psychologically harmful to the child and had caused a divisive force within the social media of the school.” In other words, the Schempps and Grayzel rejected the traditional US protestant solution—Horace Mann’s solution—to intersectarian rivalry in education—that is, reading the Bible without commentary. What to an earlier generation of largely Protestant Americans had looked like secularism—or, in their words, nondenominationalism—had become, with increased religious diversity, religious imposition—reviving an old religious debate about who can read and interpret sacred texts. Both experts agreed, and all parties conceded, however, that of itself, “The Bible was of great moral, historical and literary value.” They could no longer agree on how that value was to be acknowledged.
How and why had the settlement unraveled? Legal historian Corinna Lain’s Stanford Law Review article on Engel and Schempp recreates the role that the media played in the dialogue between the Court, the people, and religious elites during those years, as the country’s growing pains over increased religious diversity were once again being litigated. In a case study in popular constitutionalism, she shows how the overblown reaction to Engel, caused in part by public misunderstanding of the decision and media hype, was negotiated through the subsequent congressional hearings on a school prayer amendment, its eventual failure, and then in the more careful—and carefully narrow—opinions in Schempp. According to Lain, Schempp built on what she saw as an emerging social consensus around religion in schools. She sees Justice Tom Clark’s opinion for the majority—indeed all of the opinions in Schempp—as reassuring the public that America continues to be a place where religion matters but that mandatory Bible-reading was no longer the way to honor that commitment.
We can also get some perspective on the Schempp decision by looking beyond the debates about the proper use of scripture to attend a little more closely to what was actually happening in those schools.
In his opinion for the majority, Justice Clark described the beginning of the school day at the school the Schempp children attended:
On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their homerooms or advisory sections, opening exercises are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop. Selected students from this course gather each morning in the school’s workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building . . . The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students . . . The student reading the verses from the Bible may select the passages and read from any version he chooses.
In other words, the activity sought to be condemned in this case was the broadcast by a bunch of 1960s teen-aged radio and TV enthusiasts who could address the entire school over the PA system and read any ten verses of the Bible they wanted. Think about that. Particularly if one went to school in the 1950s or 60s and can recall the piped in “voice of God”—or maybe it was the principal—that intruded into our classrooms and hallways from time to time. Conjuring those bodies, those teenagers, those sounds, sudden and brief eruptions of scripture in young voices without comment—followed in some schools by the Lord’s Prayer, the Pledge of Allegiance, and school announcements. Bracketing the current divisiveness of these issues, where in those spaces—cement block buildings with linoleum floors and plastic chairs and desks— do we locate the religion? . . . and where do we perform the separation? Do we have a basis on which to separate teaching religion and teaching about religion?
The Court’s First Amendment jurisprudence, its assumptions about public schools, and its views of religion have changed a good deal since 1963. The civic promise of public education so celebrated in Brennan’s concurrence in Schempp has fallen on hard times. And now, religion has once again become a good American thing. There are new bodies and Bibles, sounds and spaces—around the flagpole, in voucher and charter schools, in home-schools—and in retail hobby stores and political conventions.
What I want to emphasize here is that continuing to sign on to Schempp as our origin myth signs us on to a particular mid-twentieth century ideological package about religion, one that begins with the assumption that the Bible is of great moral and literary value and that it could—and should—be taught in a non-sectarian and objective manner. For years Jonathan Z. Smith and others taught summer courses for high school teachers to enable them to do just that. Reading ten verses of the Bible selected by radio and TV workshop students over the PA system, on the other hand, was suddenly seen to be a dangerously coercive—or maybe dangerously uncontrolled—practice, distinct in some undefined—and perhaps undefinable—way from other mandated patriotic and educational practices. Do we really think that teaching the Bible as literature and moral exemplar is “safer” than reading it over the PA system? How do we know? Is that our job?
Let us look at Justice Potter Stewart’s lone dissent in Schempp. (He had also dissented in Engel.) Stewart thought that the First Amendment required government to find ways to accommodate religion without coercing dissenters. He thought these kinds of things were highly local and that a particular school could thread the needle of the two religion clauses—protecting the free exercise of religion without establishing it—if it was careful to provide real nonstigmatized alternatives to public religious exercises. After thoroughly reviewing the facts, Stewart opined that
These are not, it must be stressed, cases like Brown v. Board of Education, in which this Court held that, in the sphere of public education, the Fourteenth Amendment’s guarantee of equal protection of the laws required that race not be treated as a relevant factor. A segregated school system is not invalid because its operation is coercive; it is invalid simply because our Constitution presupposes that men are created equal, and that therefore racial differences cannot provide a valid basis for governmental action. Accommodation of religious differences on the part of the State, however, is not only permitted but required by that same Constitution.
Stewart assumed that religion was different from race because he thought that the Constitution treated them differently. Racial difference among students, Stewart thought, should not be acknowledged. Religious difference must be.
Americans are still, in a way, suspended between the majority and the dissent in Schempp. With respect to religion, many agree with Justices Clark and Brennan that religion is a private matter, best not acknowledged. For others, Stewart got it right: The Constitution obligates a positive and even-handed acknowledgment of religion and religious difference. We are also split on whether/how/when/where to acknowledge race.
I want to argue that we in religious studies should step back from these very American debates about race and religion. We should notice that in Schempp. both plaintiffs and defendants, as well as both majority and dissent, agreed that religion is different, that it can be distinguished from non-religion, and that it calls for special treatment. We should notice that all then agreed that it was possible to distinguish teaching religion from teaching about religion and that the Constitution required such a separation.
I don’t think that we can or should continue to defend that mid-century consensus as a political matter. The Court has now given up on separationism—unable, I think, to see how to perform it. I would argue that separationism has not worked for religious studies either. Recent calls for better policing of the borders of the field ring hollow to my mind. What is fascinating about religion are the borderlands. When we cite Schempp we rely on both a now out-of-date jurisprudence and a now out-of-date philosophy of religion.
I think we should then, as teachers and as scholars, not look to the Constitution to define our task and we should not take a position about the constitutionality of religion in public schools. The value of judicial intervention seems less obvious these days. Indeed, it is sometimes argued that the decisions in Brown and in Engel (the NY Regents’s Prayer case), taken together, helped to lead directly to the rise of private Christian schools and homeschooling—and voucher programs—indeed to a newly entrenched segregation in schools, that is racial, religious, and economic.
Who are we and what do we do? I suggest that we in religious studies work in a complex and messy academic environment, one in which our work is distinguished from that of many others in the academy only by our somewhat more focused attention to phenomena which have come, for a variety of reasons, to be understood to be religious. Our various departments were formed for historically contingent reasons on which we would not want to lean too heavily. In other words, we concern ourselves today with the discursive and bodily practices which could be understood to have underwritten that invention, but we also concern ourselves with a broader array of phenomena now gathered under that rubric—their nature, their contexts and their intersectionality.
I think our students are impatient with the culture wars within religious studies. They find them opaque and irrelevant. Students are interested in the history and politics of separation. But the importance of understanding religion should not be driven by a perceived legal mandate for separation and secularism in the classroom—even if that is what seems to justify our existence as free-standing departments at a time of uncertainty. Separationism helped to produce and underwrite a religious studies in service to American exceptionalism—irenic, pluralist, and apolitical—one in which we participated in the management of secularism rather than in observing and understanding it.
We who study and teach religion in the United States should take responsibility for our own origin story; we need to leave off being Schempp-style creationists and we need to leave off being handmaidens to an imperialist politics and a now bankrupt jurisprudence. Religious studies in the United States is founded in a profoundly Christocentric set of assumptions, to be sure. We cannot and should not attempt to entirely escape entanglement with politics. In my view, the best and most interesting work in religious studies today engages pressing issues about what it means to be human across a very wide range of domains. The best work today challenges and is challenged by difficult epistemological—and perhaps metaphysical—questions, ones we share with other disciplines. The best work sees teaching religion and teaching about religion as deeply entangled. We serve our students best by inviting them into this struggle, not by circling the wagons.