Читать книгу White Christian Privilege - Khyati Y. Joshi - Страница 19

Religion was never meant to be entirely absent from public life. Rather, the Constitutional protections of the First Amendment were meant to prevent the federal government from putting its power behind any specific religion. While successful in preventing the legislative or executive establishment of an officially mandated national religion, such as characterized church and state in the early colonies, Protestant Christianity’s culture and mores have defined US history. Even Jefferson’s Christian-centric word “church” in the phrase “church and state” proves this point. The Protestant norm has shaped laws and court decisions on religious freedom.²²

Christian privilege is built into the edifice of American law. Across time and topic, we find the normative power of Christianity, particularly Protestant Christianity, shaping the Courts’ decisions on whether and when the First Amendment protects religion. We see this, for example, in court rulings that rely on the distinction between belief and action. This distinction is an enduring theme connecting Free Exercise cases across numerous decades.²³ Protestant religious practice is primarily about holding particular beliefs rather than taking religiously mandated actions, such as wearing a religious head covering, growing one’s hair, or engaging in the consumption or veneration of nature. Of course, there are things that Protestants “do,” such as attending church and participating in the Sacraments, but Protestantism’s religious mandates are more about belief than action. This has shaped, in many ways, what the courts will or will not allow when it comes to religion.

The Supreme Court articulated this action/belief divide in Reynolds v. US (1879) after Congress banned polygamy in 1862. The Court rejected the claims of George Reynolds, a Mormon, that that ban violated the First Amendment. In support of his right to plural marriage, Reynolds had argued that the anti-polygamy statute violated the Free Exercise clause. The high court disagreed, upholding the law by ruling that polygamy was an “action” not a “belief,” that only beliefs are protected by the Constitution, and that polygamy should be restricted for the good of society.²⁴ In other words, Reynolds was free to believe in plural marriage—just not to engage in it.

The Reynolds case is important because the Court defined “free exercise” narrowly, in a way that restricted religious practices that violated political and cultural norms, without limiting religious belief. Consider for a moment the deep power of Protestant normativity in the Reynolds case. In a host of societies and times in history, including times described in the Bible, plural marriage was common or accepted. In nineteenth-century America, however, “marriage” had a definition—singular and heterosexual—grounded in Protestant Christian beliefs, and that was enough to put Reynolds’ religious practice beyond the protection of the First Amendment.

Reynolds is part of a continuity of cases in which the belief/action distinction has been applied in ways that protect Christianity and its norms and not the religious activities associated with Native American and Caribbean spiritualities, Judaism, Islam, or Sikhism, for example; these are less likely to receive protection in the Courts. For example, most Christian sects do not require men to cover their heads. Judaism does, and in 1986 a suit filed by a Jewish officer in the US Air Force, Dr. S. Simcha Goldman, seeking to overturn the Air Force’s uniform policy as it related to religious headgear, reached the US Supreme Court as Goldman v. Weinberger. Goldman sought a Free Exercise exemption that would allow him to wear his yarmulke while on duty in the on-base hospital where he served as a psychiatrist. A denial of Goldman’s rights would leave him in a difficult position: he owed the Air Force three years’ service in exchange for scholarship funding already received, so he would either have had to violate his religious obligation or face court martial. Goldman lost. The Supreme Court’s majority opinion mischaracterized wearing a yarmulke as a personal preference rather than a religious obligation,²⁵ and gave priority to the military’s stated need for standardized uniforms that did not allow religious head covering.

Shortly after Goldman was decided, Congress added an amendment to a military appropriation bill to allow servicemembers to wear religious head coverings. Yet, twenty years later, we can hear echoes of Goldman’s experience in the cases of multiple Sikh physicians who also sought exemptions from the military’s uniform policies to wear uncut hair (including beards) and turbans. Sikh servicemen had to fight for their rights as if theirs was a new dilemma—without the benefit of Congress’ legislative reversal of Goldman. Likewise, in 2018, US Secret Service Agent Anshdeep Singh Bhatia was asked to remove his turban and shave his beard in order to become the first Sikh in the president’s security detail; it took filing a lawsuit for the Secret Service to relent and allow him to be himself on the job.²⁶ It seems that each new non-Christian group that comes along has to “reinvent the wheel.” And they have to do so repeatedly: Sikhs, for example, had to advocate anew for the right to wear the dastaar (turban) while serving in the military, the Secret Service, and the New York Police Department.

By giving legal meaning to the distinction between “faith” and “action,” the courts have also disadvantaged Native American and Caribbean faiths. For example, the Supreme Court has upheld governmental actions that restrict the religious use of peyote, a hallucinogen consumed as part of certain Native religious practices. In Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), two men who “ingested peyote for sacramental purposes at a ceremony of the Native American Church” were denied unemployment benefits after losing their jobs for using “illegal drugs.” Upholding the denial of benefits, the court reasoned that when the government prohibits an activity—in this case, drug use while on unemployment—a person cannot avoid that rule by saying they were engaged in a religious obligation.²⁷ Likewise, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), the United State Supreme Court upheld a ban on the Santeria religious practice of sacrificing small animals as a violation of public health standards.

The Court has also refused to recognize that reverence for and preservation of nature and land are part of spiritual belief for many. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court allowed the US Forest Service to build a paved road through six miles of wilderness that the government’s own study had found was “significant as an integral and indispensable part of [American] Indian religious conceptualization and practice.” The study concluded that constructing a road along any of the available routes “would cause serious and irreparable damage to the sacred areas that are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples,” because essential to the peoples’ religious use of the area were “certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” Even as it acknowledged that the road would threaten “the efficacy of at least some religious practices” in a way that would be “extremely grave,” the Court refused to compel the government to protect citizens’ religious practices. Road construction through sacred land was deemed constitutionally permissible under the free exercise clause.

Across all of these cases, one can argue that the Court was upholding the outcome that appears to affect everyone equally: military uniformity, a ban on using illegal drugs, a non-recognition of religious traditions that would protect a particular geographic location or topographic feature. But if we are going to call these laws “facially neutral,” as courts often do, we must recognize Christianity as the “face” against which other traditions are being compared. If Christian practice included devotional head covering, Dr. Goldman and Sikh soldiers would not have had to fight those fights. If Christians used peyote in their religious practice, it would never have been declared an illegal drug in the first place. If Christianity recognized the notion of sacred lands and called for spiritually important natural spaces to be undisturbed, the logging operations in Lyng would never have commenced. Thus, Christians will never experience a “facially neutral” ban on their practices, and the burden of government regulation will continue to fall only on religious minorities.

Indeed, when Christians find themselves at odds with a “facially neutral” law, they tend to win rather than lose. In Yoder v. Wisconsin (1972), the Court allowed Amish²⁸ residents to withdraw their children from public schooling after eighth grade despite a state law requiring all children to attend school until the age of sixteen. The Court went to great lengths to convey its respect for the Amish religious belief, and ultimately permitted the Amish to withdraw their children from school two years before the law allowed. The Amish succeeded, in part, by appealing to the justices’ nostalgia for a mythic American past—the simple Christian America of horses and buggies and life on the farm. This national past, however romanticized, was one most of the justices could readily understand: Of the seven justices who participated in Yoder, six were Protestant and one, William J. Brennan, was Catholic. So, whereas in 1986 the Supreme Court would call Goldman’s yarmulke a “personal preference” which the Air Force could “subordinat[e] … in favor of the overall group mission,” in 1971 the Yoder Court wrote: “the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction.”²⁹ In the Court’s own words, the Amish were aided in their appeal “by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society.”³⁰ If access to religious liberty is most available to groups who have been here a long time and are familiar to the justices, can we really expect “equal justice under law” for immigrant religious minorities?

Even more recently, in Burwell v. Hobby Lobby (2014), the Supreme Court applied the Free Exercise clause and the Religious Freedom Restoration Act of 1993 (RFRA) to protect corporations whose individual owners were Christians with “religious objections to abortion.” Hobby Lobby sought to avoid providing its employees with a health plan that included family planning coverage, despite the Affordable Care Act’s requirements that health plans include reproductive health care for women. The Court ruled that Christian-owned businesses can avoid complying with the Affordable Care Act’s coverage requirements based on “the sincerely held religious beliefs of the companies’ owners.”

The Hobby Lobby ruling shows that Christians may be able to use Christianity’s normative social power to upend First Amendment jurisprudence. In cases brought by religious minorities, like Goldman and Lyng, the “free exercise” of religious observances outside the Christian norm were not protected by the Constitution. Rather, the Court concluded that a standard applicable to everyone is religiously neutral, even when it prevents everyone but Christians from practicing their faith. Based on that reasoning, the Court perpetuated legal discrimination against religious minorities. But in Hobby Lobby, the Court treated the Affordable Care Act—a health insurance mandate—as if it were not religiously neutral. According to the majority opinion, individual evangelical claims of free religious exercise can supersede a federal law about health insurance, so that a business could avoid providing the coverage the law requires. Clearly, the notion of “neutrality” is shaped by the deep effects of Christian normativity on the Christian-majority Court. The collective message of the Court’s free exercise cases is that a burden on Christian practice offends the Constitution, while a burden on non-Christian practice does not.

Because most Supreme Court justices are themselves born, raised, socialized, and educated within the symbols and structures of White American society, with its deep Christian normativity, they tend to reach decisions that reflect this influence. The power of social norms, particularly those shaped by centuries of Christian hegemony, shapes “the law of the land.”³¹ Indeed, as we will see in the next chapter, an earlier generation of Supreme Court justices stripped a Sikh immigrant of his citizenship because “the common man knows perfectly well” that a Sikh is a “brown Hindu” and not a “white person” entitled to US citizenship.³²

Litigation and debates over the Establishment Clause (“Congress shall make no law regarding the establishment of religion”) also show the strong influence of Protestant norms, and a bias in favor of behavior that is clearly Christian. In 2014, for example, the Supreme Court ruled that beginning a public meeting with prayer from a “volunteer chaplain” does not violate the Establishment Clause. The plaintiffs in Greece, New York, were not even trying to eliminate prayer from public meetings—only asking the Court to instruct the town that prayers should be “inclusive and ecumenical” and addressed “to a ‘generic God.’” Greece’s practice was to have chaplains offer only Christian sectarian prayers—“prayers steeped in only one faith,” to quote Justice Kagan’s dissent. The town had never invited non-Christian clergy to deliver the prayers. A lower court concluded that these practices affiliated the town with Christianity, excluded other faiths, and therefore violated the Establishment Clause.³³ But the Supreme Court found no problems with how Greece conducted its public meetings. The majority opinion looked to jurisdictions across the country and throughout US history, including the First Congress of the United States in 1789, and concluded that employing clergy to open legislative meetings with prayer is a “tradition long followed in Congress and the state legislatures.” As long as Greece’s policy “fits within tradition”—that is, as long as Greece followed traditions established in colonial times, when the Puritan ethos reigned and all legislators were Christian—its policy of opening every meeting with Christian prayer would not violate the Constitution.³⁴ The Court rejected the plaintiffs’ theory “that the constitutionality of legislative prayer turns on the neutrality of its content,” because a representative government should not appear to favor one faith over another. In fact, the Supreme Court ruled that telling clergy to constrain their prayers to “generic” or neutral references to the divine would violate the Constitution because it would amount to government censorship of Christian clerics.

Like Yoder in the Free Exercise context, the Supreme Court in Greece relied on the fact that legislative prayer was a long-standing practice at all levels of American government. Because it was traditional, the Court reasoned, it could not be unconstitutional. Five of the Court’s six Catholics joined the majority opinion; only Sonia Sotomayor joined the Court’s three Jewish justices in dissent. Here again is the deep power of Christian normativity: under the Greece precedent, Christian prayer to convene a public meeting is literally subsumed within the definition of the American way of life. Even government chaplains, ordained by religious authorities and paid for by taxpayers, do not constitute an “establishment of religion” because—like Legislative opening prayers—the Supreme Court has ruled that such publicly employed chaplains were part of tradition in state and federal legislatures throughout American history. But what kinds of clergy were selected to these roles over the years? Not rabbis, imams, or pandits. If a government meeting opened with prayers from a Hindu priest, an imam, or a rabbi, would it be similarly received? The answer is no. And all this still fails to address the millions of Americans who do not believe in prayer at all, but who nonetheless, when attending public meetings, as is their right, promptly hear the words, “Let us pray.”

Even if Galloway and her co-plaintiff had gotten the “generic,” “nonsectarian” prayers they asked for, those prayers would still promote Christian norms. A chaplain who carefully omits references to Jesus will still be speaking a prayer in English, likely using words like “thee” and “thy” and a vernacular and cadence familiar to Christians, and concluding with an “Amen.” Any veneer of religious neutrality accomplished by omitting references to “Your Son our Savior,” or the words “in Jesus’ name,” is just that: a veneer. The chaplain’s words will still sound like a Christian prayer to everyone in the room—especially the religious minorities.

This is not to say that the Establishment Clause’s protections from coercive state-sponsored religious activities are never applied to Christianity. For example, the Establishment Clause was held in two major Supreme Court decisions, Engel v. Vitale (1962) and Abington Township School District v. Schempp (1963), to prohibit schools from requiring students to participate in devotional prayer and mandatory Bible reading. Sadly, the tragedy here is not that Engel or Schempp did not go far enough, but that the Christian majority saw this as an attack on Christians and schools and was successful in perpetuating the idea that government is “taking religion out of schools.” The goal was never to remove religion, but to remove compelled prayer and forced religious practice: school rules and traditions that obligated children to pray Christian prayers under the supervision of their teachers and coaches. School administrators and policy makers have often taken these rulings much too far—treating them as a virtual ban on the discussion of religion in schools, as if schools must exist as “religion-free zones.”³⁵

Treating religion as a barred topic in school discourages students from expressing important elements of their identity. Like “color-blind racism,” it perpetuates the “optical illusion” of freedom of religion because it allows educators to deny the reality that religion is in schools every day—specifically one religion, Christianity. Christianity is there, from the calendar to the culture to the history books. Pretending otherwise results in curricula that ignore religion’s role in history and society, and allows educators to ignore religion-based conflicts and bullying when the right thing to do is to talk openly about the issue. I think of a seventh-grader I encountered years ago. An Indian American Hindu immigrant, he was held down in the lunchroom and force-fed a hot dog by several classmates who thought it would be funny to make the religiously vegetarian boy eat beef. How does pretending religion doesn’t exist help that child articulate what happened to him? How does it help educators properly punish the perpetrators, or provide restorative justice to the victim?

In fact, the Supreme Court in Schempp wrote that the study of religions in the nation’s public schools is both legal and desirable:

It might well be said that one’s education is not complete without a study of comparative religions 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 historical qualities. Nothing we have said here indicates that such study of the Bible or of religion, where presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.³⁶

In other words, the Establishment Clause does not prohibit the study of religion, or even the reading of sacred Scriptures in school as part of a course of study. Schools and teachers are forbidden only from crossing the line between academic presentation and religious advocacy—between “teaching” and “preaching.”³⁷ Schools should promote awareness of religion and expose students to the diversity of religious worldviews; they are prohibited only from encouraging students to accept religion, and from endorsing or denigrating any particular religion or belief. Schools need to acknowledge the role of various religions in shaping world and US history and religions’ influence in society today, and nothing in Engel or Schempp prevents that.

Understanding the roles Christianity plays in the development of American law and society—and even of how laws and public perceptions define who is or may become “American”—allows us to see through the optical illusion of “religious freedom,” and to understand how Whiteness and Christianity have coexisted and mutually supported each other. That edifice of privilege for certain Americans, and the corresponding struggles and disadvantages faced particularly by non-White non-Christians, are fundamental to the ways the US has fallen short of the “more perfect union” it could be and should be.