Jerryson, Constitutions, Courts, And the Study of Religions

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JAAR XLV/3 (1977), 291-308

Constitutions, Courts andthe Study of ReligionRobert S. Michaelsen

ABSTRACTCourt deliberations and decisions have some bearing on the study ofreligion in colleges and universities which are supported in some way fromtax monies. U.S. Supreme Cou rt " do ctn ne" on religion and the state involvesa threefold test of con stitutio nality . Th ere mu st be: (1) a clear "secularpurpose", (2) a "direct and immediate" (formerly "primary") "effect" ofneither advancing nor inhibiting religion ("neutrality"), and (3) avoidance ofundue "entanglement" of religion and government. The Court languagewhich has become controlling in the application of this "doctrine" to thestudy of religion is. "objectively as part of a secular program ofedu cation . ." This language was app ealed to extensively in the one cou rtcase in which a state university course relating to religion was directlychallenged. The court records and opinions in that case, in which two BiblePresbyterian clergymen attempted unsuccessfully to force the University ofWashington to discontinue the course "The Bible as Literature," areexam ined. So also are those in two recent cases in which public supp ort of thestudy of religion and theology was the object of some inquiry in connectionwith constitutional challenges of public support of certain religious orchurch-related colleges in Connecticut and Maryland. In one of these casesthe courts found that the courses in religion and theology at the fourdefendant Catholic colleges in Connecticut were constitutionally acceptablebecause academic freedom was espoused at those colleges, there was noevidence of efforts to indoctrinate or proselytize, the courses covered a widerange of human religious experiences and involved teachers of various faiths,and they fitted into the "predominant higher education mission" of thoseinstitutions "to provide their stude nts with a secular edu cation . . ." In theother case the District Court, while ruling that public aid to the defendantMaryland colleges is constitutional, excluded courses m theology andreligion from that aid. Despite the testimony of an expert witness that thesecourses were academically legitimate, the Court concluded that a"possibility" existed that they were designed primarily to deepen "religiousexperiences in a particular faith" and hence might not be taught inaccordance with accepted academic canons . Since the U.S Suprem e Cou rt

Rob ert S Michaelsen is Professor of religious studies at the U niversity ofCalifornia, Santa Barbara. His writings include The Studv of Religion in AmericanUniversities, 1965. Pieiv in the Public School, 1970, and The American Search forSoul, 1975 He is a past president of the Am erica n A cadem y of Religion


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did not consider this aspect of the case some doubt remains, not only aboutthose particular courses but also, by implicaton, about similar courses insimilar situations.Brief allusion is also m ade to co urt use of scho larsh ip in religion, and , ina concluding statement, the author suggests that for scholars in religion thedistinction between the study of religion and its practice continues to beappropriateA T first blush it migh t ap pea r th at constitu tions and cou rts have little todo with the study of religion. Surely it is the scholars in the field andnot nine elderly black-robed gentlemen in W ashington w ho determ inethe contents and c anons of its study. Still, it can be plausibly argued tha t in theabsence of an established church in America, the opinions of the courts, andespecially those of the United States Supreme Court, tend to becomedefinitive for a certain kind or or th od ox y in public policy, or at least for pub licortho prax y, and that this definitive role may even touc h the study of religion.In the nation's most august tribunal, as Chief Justice Warren Burger hasrecently said, "a whisper becom es a sh ou t" which m ay echo across the land . Alook at the record will disclose, then, that court opinions may haveconsiderable bearing on our subject. It will also disclose that the scholarlystudy of religion has had some effect upon court deliberations.

First, and mo st ob viously, insofar as the systematic study of religion goeson in publicly financed and controlled institutions, constitutional provisionsrelative to religion m ay hav e a very direct applic ation to th at study . To put thematter most directly: Under recent judicial interpretation, it is possible thatany taxpayer in Ann Arbor or Berkeley or Missoula may bring suit under theestablishment clause of the First Amendment, and cognate or analogousprovisions of the applicable state constitutions, to put a stop to what goes onunder the heading of religion or religious studies at the state university lo catedin each of those cities /1 /. The l ikelih ood of such a suit is, no dou bt, relativelyremote. This is true not only because of the relative "purity" of the academicpractices of these institutions, but also and more importantly perhaps,because of the amount of money and expertise required to launch such a suitand to keep it afloat. Few individual taxpayers even in Ann Arbor orBerkeley, let alone Missoula, could command that kind of support, andfortunately for those of us in the field, perha ps, the academ ic study of religionin state universities is not a primary target for the most active separationistlitigating groups, i.e., the American Jewish Congress, the American CivilLiberties Union, and Americans and Others Organized for the Separation ofChurch and State (see Sorauf). Nonetheless, about a decade ago, two BiblePresbyterian clergymen from the Seattle area, both taxpaying citizens, didbring such a suit against the University of Washington to forcediscontinuation of the course "The Bible as Literature" at that institution.They charged that that course violated the sections on religion in both thestate and federal constitu tion s, that it, am on g other thing s, con stituted "anestablishment of religion." They carried their suit all the way to the UnitedStates Supreme Court, but they did not succeed (citations under Bible as Lit.in Tab le of Legal Cases). Still, the case does illustra te the fact th at courses in o r


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294 Robert S. MichaelsenBlack said: "The 'establishment of religion' clause of the First Amendmentmeans at least this: Neither a state nor the Federal Government can set up achurch. Neither can pass laws which aid one religion, aid all religions, orprefer one religion over anoth er. . . . N o tax in any am ou nt , large or small,can be levied to support any religious activities or institutions, whatever theymay be called, or whatever form they may adopt to teach or practicereligion. . . ." This sweeping language was succinctly encapsulated in themetaphor of "a wall of separation between Church and State" (Everson 15-16).

Everson doctrine was applied a year later in McCollum vs. Board ofEducation, a case involving a challenge of a released tim e religious edu catio nprogram in the public schools of Champaign, Illinois, under which students(or their parents acting for them) could elect to take courses in religiouseducation taught by representatives of religious bodies on school time and inschool buildings. The C ourt found this progra m to be "a utilizing of the tax-established and tax-supported public school system to aid religious groups tospread their faith" and hence in violation of the "establishment of religion"clause (210). Hence the "wall of separation" was maintained or made evenmore evident / 3 / .

Everson do ctrin e w as reaffirmed again sixteen years later in a pair ofcases having to do with devotional Bible reading and recitation of the Lord'sPrayer in the public schools in the Abington School District in Pennsylvaniaand in Baltimore (Schempp and Murray). Neither a state nor the FederalGovernment, the Court said, "can pass laws which aid one religion, aid allreligions, or prefer one religion over another." And the Court went on tosuggest a refinement of doctrin e by formul ating a m ore precise test of legality:"What are the purpose and primary effect of the enactment [or practice]? Ifeither is the advancement or the inhibition of religion" it exceedsconstitutional limits. To fall within the limits of the "establishment ofreligion" clause "there must be a secular legislative purpose and a primaryeffect that neither adv ances nor inhibits religion." "Devotional Bible readin gand pray er, as "religious cerem ony" and "religious exercise," have m ore tha n amerely secular purpose, and, in the nature of the case, seek to have an effectwhich "advan ces . . religion" (217, 222).

The Schempp refinement has been generally followed and also refinedfurther in a series of cases in the 1970s having to do with various forms ofpublic aid to religious schools and colleges. Th e C ou rt has add ed a third test tosecular purpose and neutral primary effect, that is, avoidance of undue"entanglement" between the state and its agencies, on the one hand, andreligious bodies, on the other {Wah and Lemon). And recently "primaryeffect" has become "direct and immediate effect" of advancing or inhibitingreligion {Nvquisv. 78384, n. 39). In sum, to be constitutional a "secularpurpose" must be identified, the program must be tailored so as to avoid a"direct and immediate effect" of advancing or inhibiting religion, and undue"entanglement" must be avoided.


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Constitutions, Courts . Religion 295II . Supreme Court "Doctrine" and theStudy of Religion

None of the cases referred to in section I has dealt directly with religiousstudies in a public university. As far as decisions of the U. S. Supreme Courtare concerned, we can rely only on inference. How ever, there is a fair am ou ntthat can be reasonably inferred. Close or organic connection betweeninstitutio nal and / o r confessional religion and the study of religion isproblematic, as is the study of religion with the primary intention of eitherpromoting or denigrating it. On the other hand, study of religion in a secularprogram and for scholarly or academic purposes appears to be fullyacceptable.The Court language which has become quite authorita tive for subsequ entcourt decisions as well as for som e scho lars in the profession is tha t uttered byJustice Clark, writing for the Court in Schempp: "N othing we have said hereindicates th a t . . study of the Bible or of religion, when presented objectivelyas part of a secular program of education, may not be effected consistentlywith the First Amendment" (225). Before "unpacking" this language, weshould note the context in which it appears, namely, the Court's response tothe charge that unless prayer and Bible reading are permitted a "religion ofsecularism " will be "established in the schoo ls." Th e C ou rt denied this charg e,and went on to point out that "it might well be said that one's education is notcomplete without a study of comparative religion or of the history of religionand its relationship to the advancement of civilization." Furthermore, "Itcertainly may be said that the Bible is worthy of study for its literary andhistoric qualities" (225). Hence the schools are not required to remove allmention of religion from their curricula; on the contrary, they may include thestudy of religion as part of the normal context of their educational program.

In a concu rring opinion in Schempp, Justice Goldberg went even furtherthan the majority opinion. H e suggested t hat the First Am end m ent m ay even"require that . . . Government . . . take cognizance of the existence ofreligion. . . ." Th at is, in acc orda nce with estab lishm ent clause doc trine , thegov ernm ent m ust also avoid the obvious hi nd ranc e of religion. It m ust, in fact,be neutral in its relations with religion; it is not required to be in an adversaryrelationship. To ignore completely the nature, history and significance ofreligion would appear to be less (or more) than neutrality; that indeed wouldbe giving over to what Goldberg called "a pervasive and brooding devotion tothe secular." The middle ground between advocacy and an adversaryrelationship is neutral ground. In the study of religion that means, in thelanguage of the Court, teaching "objectively as part of a secular program ofeducation " or in Goldberg's words, "teaching about" as against the "teachingof religion (306)

About ten years ago, at the height of the Berkeley Free SpeechMovem ent, I quoted the Co urt's language "objectively as part of a secularprogram in education"in an address to a group of Danforth and Kent


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296 Robert S. Michaelsenfellows, all graduate students. Their reaction was stormy. Objectivity hadbecome by then a very bad word and a totally unacceptable no tion. The w holenotion was abou t to be taken apa rt limb by limb by Th eod ore Roszak in TheMaking of a Counter Culture. Beneath the concept lurked the machinationsof "the establishment" and the self-deceptions of liberal academics.

Objectivity was, and is, no dou bt, an idea to be handled gingerly and witha modicum of practical reason. But it ought not to be dismissed out of hand.As la nguage of the Cou rt, at least, it needs to be take n serio usly not as a hardand fast rule but as a constitutional indicator. We should note, however, thatthe Court used the adverbial form, not the noun. What is suggested is amanner, a style, an approach and not some kind of ontological reality.Furthermore, some of the justices, in their more reflective moods, have beenaware of the difficulties in un der stan din g objectivity in term s of a com pletelydetached, mechanistic, and inhu m an stance. For examp le, Justice Jack son , inhis concurring opinion in McCollum, suggested that it was "too much toexpect m ortals to teach . . . with . . . detachment" controversial areas whicharouse the passions of their contemporaries. "When instruction turns toproselyting and imp arting k now ledge becomes evangelism is," he concluded ,"except in the crudest sense, a subtle inquiry" (236).The Court's use of "objectively" and "teaching about" as against"teaching of should be seen in the con text of the Co urt's un derstan ding of thenotion of governmental neutrality in relationship to religion. In fact this sortof language may be understoo d as the Cou rt's effort to translate "neu trality"into language somewhat more appropriate to the academic realm.Furthermore, the Court's use of "neutrality" must be seen in the context ofthat long and bitter history of religious controversy which was uppermost inthe mind s of the framers of the F irst A m end m ent and is still of con sidera blesignificance to the Court in its interpretation of that amendment."Neutrality" may be a serviceable judicial doctrine, although thehistorical and sociological realities of the relationships between religion andthe state in the United States hardly correspond to it. Indeed, the Court itselfhas indirectly recognized this through the various adjectives it has used tomodify "neutrality"from "strict and lofty" in Everson to "wholesome" inSchempp Still, the notion may have some usefulness in interpreting the"establishment of religion" clause. It is, however, hardly adequate as aprimary guide for scholars in religious studies. As put by the Co urt, th e n otio nof neutrality and its analogues in the academic realm have chiefly a minimalusefulness in suggesting the impropriety of gross propagandizing in theacademyJustice Jackson's "crudest" measure. Beyond that, we may expecta greater degree of subtlety in our evolving understanding of what we aredoing. Perhap s we may prefer to th ink in term s of wh at one scho lar has called"disciplined intersubjectivity" (P hen ix: 19) or some similar no tion .Another common court usage"secular"is also a notion of somecomplexity and some deba te. By com m on usage, it means that w hich is notregarded as religious, spiritu al, or sacred o r which is not conn ected withreligion. That is how the courts have used itw ithout atten tion to or pe rhapseven awareness of the subtleties which scholars in religion may attach to the


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Constitutions, Courts . . Religion 297notion or may even use in completely a ban do ning it as a viable concept. Hence"a secular program of education" is most obviously one which is notcontrolled by a religious institution. The usage might also be applied,however, to a program which, while controlled in some way by a religiousinstitution, declares its primary goal to be secular or education in so-calledsecular subjects for secular ends. (More of this below in connection withrecent cases dealing with aid to colleges and universities affiliated with orcontrolled by religious institutions.)

Since 1963 the Supreme Court has applied Schempp directly to publicschool practices in only one case (Epperson). In this case an Arkansas lawwhich prohibited the teaching of evolution in the public schools or the usetherein of textbooks which applied this hypothesis, was found to beunconstitutional. Since this law was obviously based on the notion that thetheory of evolution conflicts with the Genesis account of creation, it wasunderstood by the Court to constitute an aid to religion and was seen ashaving been designed by the Arkansas Legislature to advance religion or areligion. Hence, it was an instance of "an establishment of religion."Schempp was repeatedly appealed to by both the trial court and theSupreme Court of the State of Washington in the "Bible as Literature" casereferred to above. The key question in that case was: Has the course beentaught "objectively as a part of a secular program of education?' Afterpreliminary hearings the trial court declared that the plaintiffs had th e bu rde nto prove that the course, as actually taug ht, "is slanted in a religious d irection,or designed to induce a particular religious belief, or to advance particularreligious interests, or whether the course am ou nts to a religious ind octr inatio nby teaching from a fixed theological position to promote a particulartheology . . ." (Bible as Lit.: 436 P.2d 189:191).The prime mov er in the "Bible as Litera ture" case, the Reverend Th om asW. Miller of the Bible Presbyterian Church of Seattle, maintained on thestand that the Bible "'cannot be taught objectively as a part of a secularprogram of education" (Bible as Lit.: "State me nt of Fa cts," 11:304). Coun selfor the plaintiffs attempted to establish that those who taught "The Bible asLiterature" course had accepted the "modernist or docu men tary hypo thesis"with regard to the Bible, that that position was obviously associated with apartic ular religious point of view, and hence tha t thos e teach ers had tau gh t thecourse in a religiously slanted fashion.The plaintiffs could secure-testimony from only one student who hadtaken the disputed course. She maintained on the stand that the course was"slanted toward the liberal views of theology, specifically higher criticism,variously know n, I believe, as doc um enta ry hypo thesis." When asked in cross-examination if her particular religious beliefs had adversely affected hergrade, she replied "No." (She received an "A" in the course.) And when askedif she felt that the instructor was attempting to indoctrinate her in a particularreligion, she responded: "It would have been very difficult to indoctrinateme." Finally, in response to a question a bo ut w hether the course had had "anyeffect" on her religious beliefs "one way or an o th er . . ." so as to "reinforce o rdestroy" those beliefs, she replied that the course had "reinforced" her beliefs(Bible as Lit.: "Statement of Facts," 11:257-59).


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298 Robert S MichaelsenSeveral students testified for the defendant-university. All maintainedthat the course was presented "objectively" or in a scholarly and fair m ann er.The trial court found for the defendant. On the federal constitutionalquestion that court appealed to the language of Schempp: "Nothing we havesaid here indicates that such study of the Bible or of religion, when presentedobjectively as part of a secular program of education, may not be effectedconsistently with the First Amendment" (225). In elaborating on this finding,the trial court said tha t the course presents a literary and historical study, th atit is "offered as part of a secular program of education to advance theknowledge of students and the learning of ma nkin d," that "it is taught b y . . .competent literary scholars, qualified in their respective fields of

specialization" and is "not taught by theologians." Finally, that court foundthat the course "does not promote a particular theology for purposes ofreligious indoctrination, nor is it slanted in a religious direction, nor does itinduce any particular religious belief, nor does it advance any particularreligious interest or theology" (Bible as Lit.. 436 P.2d 189:191).On appeal, the Supreme Court of the State of Washington sustained thefindings of the trial court, with one member dissenting. That court alsoconcluded that the language of the Washington State Constitution, whichprohibits the use of public money or property for "religious worship, exercise

or instruction" does not proscribe "open, free, critical, and scholarlyexam ination of the literature, experience, and know ledge of m ank ind " (Bibleas Lit.: 463 P.2d 189:193) / 4 / .If "open, free, critical, and scholarly" can be taken as legitimateextensions into the academic realm of "objectively," "neutral" and "secular"from the judicial, and I think they can, then scholars in religious studiesshould have nothing to fear from court decisions in this area.The impact of the Schempp language is also evident in Vaughn vs. Reed,a case which had to do with a released-time religious education programwhich had been in operation in the Martinville, Virginia school district since1942 and which, in structure at least, resembled the Champaign, Illinoisprogram which the Supreme Court struck down in McCollum. The defendersof the Martinville program used Schempp langu age in their defense, declaringthat that program "is an attempt to teach the students about religion ratherthan to indoctrinate them thereto ." The District Cou rt, appealing primarily toMcCollum, found this practice unc ons tituti ona l because of its use of teache rswho were appointed and paid by religious groups, its use of materials whichcould be understood to have the intention to indoctrinate, and because itinvolved the segregation of students on other than educational grounds. Thatcourt also reiterated the conditions laid out in Schempp and indicated that aprogram carried out under those conditions would be constitutional.I com e finally, in this discussion of Sup rem e Co urt "d octr ine" and thestudy of religion, to several recent cases involving challenges to various kindsof public subsidy of religious colleges and universities in which the mannerand purpose of the teaching of courses in religious studies and in theologyhave been or are at issue. One of these cases (Tilton, 1971) involved a challenge


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Constitutions, Courts. . .Religion 299of the use of federal funds, made available under the Higher EducationFacilities Act to four C atholic colleges in Con nec ticut. T he act itself exc ludesuse of the funds for "any facility used or to be used for sectarian instruction oras a place of religious worship o r . . . primarily in connection with any part ofa school or department of divinity." In upholding the use of funds for thecolleges in litigation, the U. S. Suprem e C ourt held, am ong other things, thateven though those schools are religious in sponsorship the evidence showedthat academic standards prevailed in the manner in which the courses inreligion and theology were taught and in the purposes for which they wereoffered. The institutions involved adhered to the principle of academicfreedom. The "academic requirem ents of the subject m atter and the teacher'sconcept of professional sta nd ard s" were the con trolling factors in the courses.Furthermore, the "courses covered a range of human religious experiences"and were not limited to "courses abo ut the R om an C atholic religion." Finally,"the schools introduced evidence that they made no attempt to indoctrinatestudents or to proselytize." Indeed, the Court was especially impressed that attwo of the institutions involved, courses were taught by rabbis. "In short," theCourt concluded, "the evidence shows institutions with admittedly religiousfunctions but whose pre dom inan t higher education mission is to provide theirstudents with a secular education"even in religion (Triton: 686-87).

The evidence was not found to be quite so clear in a somewhat similarcase in M aryla nd, decided some five years later. Th is case (Roemer) involvedthe challenge of a M aryland Act which prov ides public aid in the form of non-categorical grants to eligible colleges, including several religious colleges inthat state. The act specifies that n one of the public funds "shall be utili zed . . .for sectarian purposes." The critical point at issue, in terms of our analysis,was the questio n w hether the courses in religion and theolog y at the defend antcolleges were "sectarian" in nature and purpo se. In hand ling tha t question thecourts became concerned primarily to ascertain whether the courses intheology and religion were devoted "to deepening religious experiences in theparticular faith rather tha n to teachin g theology as an academ ic disciplin e." Inthe end the courts could not be certain on that question, and while public aidwas permitted to the defendant institutions generally, the District Court ruledthat the courses in theology and religion at those ins titutio ns m ust be excludedfrom tha t aid. Since , on app eal, the U. S. Sup rem e Co urt did not addre ss itselfto this particular question, a cloud of constitutional ambiguity continues tohover over courses in religion and theology at religious colleges which receivepublic aid.

Roemer clearly has implications for our subject which go beyond theconcerns of the five colleges in M arylan d which w ere imm ediately involved inthe case. Hence a more detailed examination is in order. Defendants in thecase sought to establish the academ ic and sch olarly legitimacy of their coursesin religion and theology by a series of arguments. Apparently assuming thattheology and religion are twins (whether identical or fraternal is not clear),counsel for the defendants argued that any self-respecting liberal arts collegewill offer and perhaps may even require courses in these disciplines. Citing the


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Welch study of Religion in the Undergraduate Curriculum, counsel pointedput that sixty-seven percent of the 1,300 plus institutions surveyed by thatstudy offered courses in religionincluding, in many instances, courses intheologyand that it was fairly common practice to require one or morecourses in this area. Counsel also stressed that that study found that "thehigher the quality of institution involved, the greater the likelihood of therebeing such a pro gra m " in religious studies. Testifying as an exp ert witness forthe defendants, Sam uel Hays Magill, who was then an Executive Associate ofthe Association of American Colleges, and who had played a significant rolein launching the W elch study, declared that the app roac h taken in the coursesin religion and theology at the defendant Maryland colleges represented "thekind of approach to the study of religion that one would find in any self-respecting quality institution" (Roemer: Magill Testimony: 1627ff.).

Counsel for the plaintiffs in Roemer, also citing the Welch study,endeavored to establish that "the nourishment of students' commitment to aparticular religious tradition" is a significant reason for teaching courses inreligion and theology in church related colleges. And he urged that thatoverall objective could not help but influence the content and the manner ofteaching of courses in those areas at the institutions involved. Teachingreligion or theology as an academic discipline would mean, on the contrary,according to counsel for the plaintiffs, "the teaching about Religion, asopposed to the attempt to teach greater faith in a particular religion." Inresponse, Dr. Magill indicated that the category "academic discipline" did notlimit one merely to conveying "knowledge about religion" but also involvedthe objective of "understanding." That means "entering into, empathetically,perception of and appreciation o f the "religious experience" of "a particu larreligion." This would be done, Dr. Magill stressed, for purposes of"understanding" and not with the "aim of making a person believe" as thereligious tradition under consideration professes {Roemer: Magill Testimony:1645ff.).Clearly the line between appre ciatio n and partic ipatio n is a thin one; evenmore to the point, so also are the lines between exposition and espousal andbetween empathy and inducement. There is, Dr. Magill confessed, "a tightrope to be walked." But he argued that this was true of "every discipline," andhe cited in particular such areas as political science and Am erican histo ry.As indicated, the District Court that considered the facts in Roemer wasnot persuaded that theology was taught as "an academic discipline" ratherthan as a quickener of the faith at the defendant schools. The Courtconcluded, in fact, that the latter was a distinct "possibility." While the Courtfound no evidence of obvious ind octr inat ion, it was impressed by such facts asthe candid a dmission of representatives of each of the defend ant colleges that"their institution is interested in encouraging spiritual interests," therequirement of "theology or its equivalent" at each college, and the fact thatcourses in this area were taught by "a cleric of the affiliated church" in each


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Con stitutions, Co urts . . Religion 301

ins t ance . Adding a l l o f t h i s up , t he Cour t conc luded tha t "obv ious ly thedepa r tm ent s o f t heo logy" in the se co l l eges "have been qu ickened in to as igni ficant sec ta r ian a rea of ed uc a t i on ." W hi le exp er ien ced re l ig iouseduca tors might gree t wi th a mixture of surpr i se , skept ic i sm and poss ibly evenfa int hope tha t cour t ' s percept ion tha t " re l ig ious teaching might qui te readi lypermeate and pervade the col lege ," i t i s , never the less , a percept ion tha tp robab ly has to be r ega rded wi th som e se r iousness . I n any ca se , t he Cour tconc luded tha t w i thou t " th e c l ea re s t i nd ica t io n" tha t t he f acu lty in t heo lo gy orre lig ion a t each ins t i tu t ion is " inte res ted in the s tudy of the re l ig iousph en om en on or expe r i ence , r a the r t ha n in expe r i enc ing r e l ig ion . . . s t a t e a idto such pro gra m s cann ot be jus t i f ied. . . . " Suc h a id , in fac t , co uld evenconst i tua te a " law respecting an e s t ab l i shm ent o f r e l ig ion" (Roemer: 387 F .S u p p . 1282: 1288f f . ) . Wi th th is we come back to the es tabl i shment c lause , theshadow of which fa l l s here even on courses in re l ig ion and theology in church-r e la t e d c o ll eg e s / 5 / .

I n sum , cou r t "do c t r ine , " a s app l i ed in the W ash ing ton "Bib le a sLi te ra ture" case and in Tilton a n d Roemer, is pe rm iss ive tow ard pub l i csuppor t of the academic , scholar ly s tudy of re l ig ion whether tha t occurs a t apubl ic ins t i tu t ion or a t a church- re la ted col lege which happens to be rece ivingsome form of publ ic a id . In reaching this conclus ion, cour ts have tended toaccept genera l ly he ld canons of scholarship and academic ac t ivi ty in col legesand un ive r s i t i e s . These canons inc lude academ ic f r eedom , an a s sum edprofess iona l competence of teacher - scholars , an open, f ree , and cr i t ica linqui ry in to the subjec t be ing s tudied, and an approach which ut i l izes toolsand m e tho ds app rop r i a t e t o ach iev ing the ful le st poss ib l e un de r s t a nd ing o fthe subjec t. At the sam e time , wh en it com es to the s tu dy of re l ig ion, the c ou r tshave no t l ooked f avorab ly on ev idence o f i ndoc t r ina t ion , o r o f an approachwhich is or m ay be "s la nte d" in a pa r t icu lar re l ig ious di rec t io n o r des ig ned toinculca te a par t icular re l ig ion or pr imar i ly to induce or to deepen re l ig iousexper ience in a par t icular re l ig ious t radi t ion. Presumably the genera l ly he ldca no ns of scho larship , as well as co ns t i tu t ion a l law, wo uld tend to p rec lu dethese types o f ap pro ach a l tho ug h the r e m igh t be som e de ba t e am on g scho la r sin re l ig ion about the exper ient ia l caveat. In any case , in de l ibera t ing on suchmat te r s the cour ts a re l ike ly to inqui re about such things as the profess iona lcom peten ce of the teachers involved; wh eth er they a re c le r ics , an d espec ia l lywhether in a par t icular ins t i tu t ion they a re a l l c le r ics of the same re l ig iousde no m ina t io n; wh ether the courses a re op en to a l l , r egard less of re l ig ious fa i thor lack thereof; wh ethe r the subjec t m at t e r con sidere d in a to ta l cu r r ic ula rpro gram in r e l ig ion is na r ro w an d exc lus ive o r b ro ad a nd inc lus ive ; andwhe the r t he ap pr oa ch in the cour se s i s ca t eche t i ca l o r c r i t ic a l , i n t r am ura l o rcom para t iv e The cou r t s m ay a l so r ef er o r app ea l t o t he wr i t i ngs andtest imony of scholars in the f ie ld. We have noted, for example, the referencesto the Welch study and the test imony of Dr. Magil l in Roemer / 6 / . I n t h e"Bible as L i te ra tu re" case the la te Geo rge Ernes t W right desc r ibed for a day


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302 Robert S. Michaelsenand a half on the stand the nature of his work as a biblical scholar. The authorof this article also testified as an expert wi tnes s, an d one of his wo rks is cited bythe Washington Supreme Court in its decision in that case.

III. The Courts and Scholarship in ReligionAn exa min ation of court records and d ecisions in cases having to do withreligion reveals, in fact, a fair number of references to scholars in the field.This is evident, for ex am ple, in that class of cases which h ave to do in one wayor another with the definition or meaning of "religion" itself. Court opinionsand records contain significant primary material for tracing prevailingAmerican understandings of "religion." In recent years especially, opinions

bearing on the matter of definition have clearly indicated a broadening ofunderstanding or acceptance to include nontheistic religions and evenfunctional equivalents of more tradition al religions. F unc tional equ ivalents oftraditional belief in God were accepted, for example, by the U. S. SupremeCourt in its interpretation of the Selective Service law in Seeger. Among thescholars cited by the Court in that case are Paul Tillich, J. A. T. Robinson,Ninian Smart, and Edward Conze II j .Som e years ago , just after the U. S Su pre me C ou rt's decision in

Schempp, Professor Clyde Holbrook rather peevishly complained that theCourt had not done its homework in "religious scholarship" before decidingthat case. In particular Ho lbro ok objected to wh at he considered th e C our t'srather cavalier and superficial way of deciding what is and what is not areligious act. How , he inquired, could the C ou rt jud ge tha t "the readin g of theBible, and the saying of a prayer constitute religious practice, whereas the flagsalute and the Pledge of Allegiance do not"? Yet, Holbrook continued, thereare schola rs in religion, and he included himself am on g them , wh o "hold . . .that the attitudes evoked" by the flag salute and pledge "come closer toconstituting religious acts" than do those associated with reading the Bibleand saying a prayer (Holbrook: 1076).Professor Ho lbr oo k's criticism is of the sort th at one might expect from asophisticate d schola r in religion The cou rts oversimplify. They use wo rds like"religion" and "objectively" and "secular" without being at all subtle about it.They see walls of sep aratio n w here only waverin g lines exist, and th ey perceivedividing lines where none exist at all. Yet, in their defense, court justices arenot primarily in the business of "religious scholarship." Aside from technicalescape routes, they must make decisions in adversar y relation ships (someb odyversus somebody), and they are expected to do so primarily on the basis ofpreced ent in the law, not scho larsh ip in some o the r field. F or all of th at, as wehave suggested, court decisions in cases involving religion have not beenentirely innocent of the influence of scholarship in this area, and we mighthope that future decisions may be even more well informed as scholarship inreligious studies advances.

However, having uttered that pious hope I ca nn ot h elp but cou nte r it with aword of sympathy for future justices. How far will they follow the scholars in


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Constitutions, Courts . . Religion 303religion, and which sch olars? In a case such as Roemer, for exam ple, to w homwill they appeal to discover whether theology is separable from a particularreligious confession / 8 / ? Or, much more basic and m ore bewildering,consider Professor Ho lbro ok's qu est ion tha t of definition. In a brief resumeof efforts to deal with this question, Louis Schneider points out that thepsychologist, J. H. Leuba, made in 1912 a collection of some forty-eightdefinitions and added two of his own, but still could not reach a satisfactoryone. The Journal of Religion in 1927 failed to suggest the hoped-for min im umof agreem ent o n a definition of religion. W alter H . Clark reported in 1958 thathe had obtained a considerable range of answers from sixty-three socialscientists to the question of what constitutes religion. Efforts continue (cf.Ferre). But, do not despair, court justices! That academic approach whichtends to exalt every valley and to make every mountain low, to reverse themiracle of Can a, if you will, ma y yet come to yo ur rescue. Being informe d bythe scholars in religion that every group has a religious dimension, andunde rstandin g th at w herever two or three are gathered t ogeth er solemnly theyconstitute a g rou p, you can discover the real natu re of religion by exam iningyour own assemblages. If that is not sufficiently satisfying then try tounderstand and interpret the First Amendment in the framework of therecently discovered American "civil religion."

Of course, courts cannot really muck around endlessly among the variedviews of scholars regarding what constitutes religion or when an act isreligious and when it isn't. And, when it comes down to them, even thescholars must come to some kind of closure if they are to teach (about?)anything. Personally, I rather agree with Schneider's conclusion that "acertain looseness" in definition need not "create despair about scientificaspirations in the study of religion" (772). Operating on the same pragmaticand co m m on sensical basis, I do no t find it beyond the realm of reason tha tcourt justices should tend to understand "religion" with at least someattention to common usage.IV. The Moral, or the Bottom Line

There is, of course, much more to court cases than thejudicial decisionsthat fill those massive tomes which one sees in law libraries. Behind eachrecorded opinion there is likely to be an involved tale of human anguish orgreed or culpability or possibly even principled indignation. And the tale islikely also to involve considerable outpourings of money, time and humanenergy. Alongside court "doctrine" these practical aspects of court cases maybe of equal concern to those of us in the field. Who is likely to challenge whatwe do? And w hat a re his chances of success likely to be? We may be grateful , asI have intimated, that the enterprise of which we are a part has not become atarget for the most active separationist groups. We are, of course, not onlyrelatively "pure" but also relatively insignificant in the larger church/statescene. The challengers in Tilton and Roemer were after much bigger gamethan the courses in religion and theo logy at the colleges involved They hoped


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304 Robert S Michaelsento block all public aid to those institutions and, through then establishedprecedent, to similar institutions throughout the country. In Roemer theywon a skirmish, having to do with those courses, but they lost the war.Having won that much in the encounter, however, it may well be that suchcourses will be brought into their sights in similar challenges in the future.

The challengers of the course "The Bible as Literature" at the Universityof Washin gton did no t d o very well on the practic al aspects of tha t case. Whilethey were completely sincere in pursuing their case, they were neither veryseasoned nor very shrewd. As a result, they not only failed to enlistexperienced and expert legal help in this area, they also failed to enlistsignificant public support. Indeed, there was almost a circus atmosphereabout the trial, and , unfortun ately for the challengers, the press prom inen tlyplayed up the seeming analogy w ith the famous "m onkey t rial" of 1925. At thesame time, the very sectarian mentality of the plaintiffs undercut, in thejudgment of this amateur constitutionalist, the effectiveness of their case.Their witnesses, both student and "expert," were drawn almost exclusivelyfrom their own religious group. And they seemed to want to follow in thecourt the same sort of flambouyant and bitter attack upon the liberalProtestant establishment which their leader, Carl Maclntyre, had longpursued. Indeed, the leader himself was brought to Seattle where he waitedimpatiently for three days before finally getting his chance on the witnessstand. Then, much to his dismay and that of counsel for the plaintiffs, therange of his testimony was severely circumscribed by the court. This veteranwarrior was perhaps even more deflated when counsel for the defenseshrewdly refrained from cross-examining him.A case like the "Bible as Literature" case is not likely to attract thesupp ort of seasoned separa tionist grou ps. If one sho uld, how ever, we could bein for some uncomfortable times.All of this leads me to con clude tha t it still m akes good sense, as a m atte rof public policy and probably also educationally and constitutionally, todistinguish between "the study of religion and the practice of it," as the facultycommittee which played a critical role in the founding of the Department ofReligion at Princeton put it in 1935. That committee had in mind, no doubt,the practice of such obvious and old-time religious faiths as Judaism,Catholicism and various forms of Prote stantis m . We have since becom e mor esubtle and more comprehensive in our understandings of religion, and hencethe distinction may not be quite as easy to make today. Nevertheless, weprobably should give it a try.


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Co nstitutions, Cou rts . . Religion 305

N O T E S

/1 / The subject of standing to sue on cons titutional ground s is an involved on e.However, in recent years U. S Suprem e Co urt decisions have moved tow ardincreasing openness on this question, especially in cases involving the establishmentclause of the First Am endm ent. While dem onstrated significant or subs tantial adv erseeffect of an enactment or practice on an individual, e.g., a school child or a taxpayer,had b een required in earlier cases, the C ou rt has steadily moved to wa rd ac ceptin g casesin which such an effect has n ot been clear. On e obvo ius exam ple is the case of the publicuse by public school officials of the Board of Regents prayer in certain New Yorkschools. The prayer itself was relatively innocuous' "Almighty God, we acknowledgen n r H p n m H p n w u n n n T h oo ->n/< .1 .0 k o ; T h 1 / bleSS ir.^f, UDCP. US CUT DZTZTilZ CUrteachers, and our country." Provision was made for excusing those who wished to beexcused from reciting the prayer And the amo un t of any particular taxp aye r's mo neyinvolved in supporting the practice was infinitesimal. Nevertheless, the Court not onlyheard the taxpayers' complaint that the practice constituted "an establishment ofreligion," the Court agreed with it. Arthur E. Sutherland, Jr., one-time distinguishedprofessor of constitutional law at Harv ard, p ointed o ut that after the Co urt's decisionin Engel "a classroom exercise, if once found to be an 'establishment of religion'becomes enjoinable . . . even if no schoolchild is subject to 'coercion,' and even if noplaintiff demonstrates an unconstitutional expenditure of taxpayer's money"(Sutherland: 26)./ 2 / The use of tax monies and public buildings for religious activities andnoncredit courses in religion at the University of Minnesota was challenged by aMinnesota taxpayer in the early 1950s. The Supreme Court of Minnesota dismissedthe case on the ground that the plaintiff had not exhausted other feasible courses ofaction, such as direct appeal to the Board of Regents of the University (Sholes).13 / Fou r years later the Co urt , in a split decision, upheld a released time religiouseducation program in which the courses were offered during school time but off schoolgrounds. In that case (Zorach 312-15), the C ourt relaxed som ewh at the stringency ofits doctrine of separation./ 4 / The one dissenting judge in the Washington Supreme Court, relying on anearlier decision of that court, argued th at that co nstitutiona l provision p roscribed "anyreligious instruction . . even tho ug h it be neither sectarian, doctri nal, n ordenominational" {Bible as Lit.: 436 P. 2d 189:196, my emphasis)./ 5 / Courses in religion and theology at church colleges may also be at issue in acase which is pending as of this writing (Citizens for the Advan cemen t of PublicEducation vs Board of Regents, State of Louisiana)./ 6 / However, the District Court appears generally to have ignored Dr. Magill'stestimony. At least the Court was not convinced by it./71 It was not until 1961 that the U. S. Supreme Court formally recognized, inTorcaso vs Watkins, that there are religions in which belief in God plays little or norole. In that case the Court dropped what has become a famous footnote' "Amongreligions in this cou ntry which do not teach w hat would generally be cons idered a beliefin the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism


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and others" (Torcaso. 495 n. 11). The Court cited chiefly standard reference works insuppo rting its statement; n one of these throw s m uch light on the curious inclusion of"Secular Hum anism " Earlier two lower courts had acknow ledged that certainorgan izations qualify for tax exem ption as religions even tho ug h they disavow belief inGod (see Washington Ethical Society; and Fellowship of Humanity). Seeger wasfollowed by Welsh, another conscientious objector case in which a relatively broadunderstanding of religion is implied. (On the question of definition and especially offunctional equivalents see Burkholder: 46-50.)/ 8 / Co mp are, e g., Smart and Th iehcke with Davis and Galloway

WORKS CONSULTED

Burkholder, John Richard1974 "'T he Law Knows No Heresy': M arginal Religious Mo vemen ts andthe Courts ," Religious Movem ents in Contemporary America. IrvingI. Zaretsky and Mark P. Leone, eds. Princeton: Princeton UniversityPress, 27-50Davis, Charles1974-75 "The Reconvergence of Theolog y and Religious Stud ies." Sciences

Rehgieuses I Studies in Religion, 4.203-36Ferre, Frederick

1970 "Th e Definition of Re ligion ." Journal of the American Academy ofReligion, 38:3-16

Galloway, A. D1975 "Theology and Religious Stu dies the Unity of Our Discipline."Religious Studies, 11:157-65.Holbrook, Clyde A.1963 "Religious Scho larship and the Co urt." The Christian Century,

LX XX : 1076-78Phenix, Philip1972 "Religion in Public Ed uca tion ' Principles and Issues." Religious

Education, 67.11-24.Schneider, Louis

1964 "Prob lems in the Sociology of Religion," Handbook of ModernSociology, Rob ert E L. Faris, ed. Ch icago : Ran d M cNally, 770-807.


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Roemer Roemer vs. Board of Public Works, State of Maryland,387 F. Sup p 1282 (1974), 426 U . S. 736 (1976), n. 20, p.756; transcrip t of testimony by Sam uel H Magill.Schempp Abington School District vs. Schempp, 374 U. S. 203(1963).

Sholes Sholes vs. University of Minn , 54 N. W. 2d 112 (1952)Seeger United States vs Seeger, 380 U S. 163 (1963).Tilton Tilton vs. Richardson, 403 U. S. 672 (1971)Torcaso Torcaso vs Watkins, 367 U. S. 488 (1961).Vaughn Vaughn vs. Reed, 313 F Su pp 431 (1970)Washington Ethical Society Washington Ethical Society vs. District of Colum bia,249 F. 2d 127 (1957).Welsh Welsh vs United States, 398 U. S. 333 (1970).Zorach Zorach vs. Clauson, 343 U S 306 (1952).

Documents

Jerryson, Constitutions, Courts, And the Study of Religions