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Chapter 8 the Centralization of Religious Liberty

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Chapter 8 the Centralization of Religious Liberty Distribution Agreement In presenting this thesis or dissertation as a partial fulfillment of the requirements for an advanced degree from Emory University, I hereby grant to Emory University and its agents the non-exclusive license to archive, make accessible, and display my thesis or dissertation in whole or in part in all forms of media, now or hereafter known, including display on the world wide web. I understand that I may select some access restrictions as part of the online submission of this thesis or dissertation. I retain all ownership rights to the copyright of the thesis or dissertation. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. Signature: _________________________________________ _____________________ Justin J. Latterell Date The Constitution of Religious Liberty: Religion, Power, and the Birth of the Secular Purpose Test, 1844-1971 By Justin J. Latterell Doctor of Philosophy Graduate Division of Religion Ethics and Society ________________________________________ Steven M. Tipton, Ph.D. Co-Chair ________________________________________ John Witte, Jr., J.D. Co-Chair ________________________________________ Elizabeth M. Bounds, Ph.D. Committee Member ________________________________________ E. Brooks Holifield, Ph.D. Committee Member Accepted: ________________________________________ Lisa A. Tedesco, Ph.D. Dean of the James T. Laney School of Graduate Studies ______________________ Date The Constitution of Religious Liberty: Religion, Power and the Birth of the Secular Purpose Test, 1844-1971 By Justin J. Latterell B.A., Augustana College, 2003 M.Div., Union Theological Seminary, 2007 Advisors: Steven M. Tipton, Ph.D. John Witte, Jr., J.D. An abstract of A dissertation submitted to the Faculty of the James T. Laney School of Graduate Studies of Emory University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Religion 2014 Abstract The Constitution of Religious Liberty: Religion, Power and the Birth of the Secular Purpose Test, 1844-1971 By Justin J. Latterell This dissertation analyzes antecedent forms of a legal doctrine known as the “secular purpose test” as a case study in secularization theory. The primary focus is on cases argued in the U.S. Supreme Court and lower courts of constitutional review between 1844 and 1971. Constitutional law contributes to the process of separating the social spheres of government and religion, and specifying distinct forms of organization, moral understanding, reasoning, and imagination for each sphere. The secular purpose test is a controversial standard of constitutional review that U.S. courts presently use to evaluate religious liberty claims pursued under the First Amendment’s Establishment Clause. This dissertation describes the test’s historical and conceptual underpinnings, its implications for the differentiation of religious and legislative spheres, and its potential effects on the forms and functions of religious expression in legislative spheres. The secular purpose test was first introduced in 1963. It conflated the Supreme Court’s conclusion, in previous cases, that “secular education” served legitimate “public purposes” into a blunt requirement that laws must have a “secular legislative purpose” in order to pass constitutional review under the Establishment Clause. The secular purpose test subsequently displaced longstanding methods of constitutional review by which courts had measured the purposes of contested laws not in terms of their secularity, as such, but in terms of the specific powers of legislative bodies to promote a range of social goods, or legislative ends. This innovation yields a novel form of functional and institutional differentiation between religious and legislative spheres via constitutional law, rendering legislative spheres definitively secular, and implicitly privatizing religious moral norms and idioms. As such, the secular purpose test forestalls potentially valuable forms of legislative and moral discourse between religiously and non-religiously diverse constituencies. The Constitution of Religious Liberty: Religion, Power and the Birth of the Secular Purpose Test, 1844-1971 By Justin J. Latterell B.A., Augustana College, 2003 M.Div., Union Theological Seminary, 2007 Advisors: Steven M. Tipton, Ph.D. John Witte, Jr., J.D. A dissertation submitted to the Faculty of the James T. Laney School of Graduate Studies of Emory University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Religion 2014 Acknowledgements So much of what is good in this work I owe to the love, support, and wisdom of others. To the members of my dissertation committee – John Witte, Jr., Steve Tipton, Elizabeth Bounds, and E. Brooks Holifield – thank you. Your guidance and counsel has been invaluable. To my friends and colleagues in the trenches of graduate school – Ira Bedzow, Ellison Cale, Mark Goldfeder, Brian Kaufman, Jeremy Lowe, Chris Manzer, Wade Mitchell, Matt Tuininga, and many others – thank you. There are few gifts so dear as the solidarity and empathy of true friends. To the capable staff and faculty of the Center for the Study of Law and Religion at Emory University – thank you. You generously shared your time, energy and space in ways that have straightened and smoothed my path. To my parents and siblings – Kim, Sharon, Josh, Erin, Kelly, and JT (and all of my nieces and nephews) – thank you. You have been a shelter in many storms. To my precious daughters – Emma and Amelia – thank you. You are gifts from God, and you inspire me anew each day. Most of all, to my Brookelinn – thank you from the very depths of my soul. You are my world, and to you I dedicate this work, every word. J. Latterell September 25, 2014 Atlanta, GA Ps. 28: 6-7 ! 1! Table of Contents Preface:(Notes!on!an!Address!from!David!Josiah!Brewer! 2! Introduction:!Secularization!and!the!Constitution!of!Religious!! 7! !!!!!!!!!!!!!!!!!!!!!!!!!!Liberty! Section(1:(Legislative(Powers(and(Disestablishment(Norms( 32! Chapter!1:!Orphans,!Education,!and!Infidelity! 36! Chapter!2:!Remember!the!Sabbath!(without!Keeping!it!Holy)! 69! Chapter!3:!The!Sisters!of!Charity!and!their!Secular!Hospital! 89! Section(2:(Legislative(Powers(and(the(Free(Exercise(of(Religion( 120! Chapter!4:!The!Priest,!the!Parishioners,!and!the!Police!Powers! 124! Chapter!5:!Polygamy!and!the!Enlightened!Sentiment!of!! 150! !!!!!!!!!!!!!!!!!!!!!Mankind! Chapter!6:!The!Foreign!Preacher!and!His!Labor! 183! Section(3:(The(Birth(of(the(Secular(Purpose(Test( 208! Chapter!7:!An!Emerging!National!Tradition:!Religious!Liberty!!!!! 212! !!!!!!!!!!!!!!!!!!!!!in!American!Legal!Thought,!circa!1900! Chapter!8:!The!Centralization!of!Religious!Liberty,!1900Y1947! 247! Chapter!9:!Birth!of!the!Secular!Purpose!Test,!1947Y1971! 281! Conclusion:!Here!Comes!the!PostYsecular!Purpose!Test!! 329! Bibliography( 367! ! 2! Preface Notes on an Address from David Josiah Brewer1 In 1897, David Josiah Brewer, a U.S. Supreme Court Justice, delivered an address to the graduating class of Yale Divinity School. Brewer’s speech was entitled, “The Pew to the Pulpit,” and it offered a layperson’s perspective on the changing forms and functions of the clergy and of religion in American society. Brewer is better known among scholars of religion and law for his description of the United States as a “Christian nation” in the Supreme Court’s ruling in Holy Trinity v. United States (1892). In his address to the Yale Divinity School, however, Brewer sounds much like a contemporary theorist of secularization describing a rapidly changing society to the nation’s newest clergymen. “[T]he great law of labor and business and professional life to-day is specialty,” he declared: The specialist is the successful man. And this law of specialization affects the ministry. No longer can the minister pose as one possessed of all information and entitled to control outside the limits of his special work. The moment he steps into the domain of education, and says ‘I know what is best therein, I can decree the limits beyond which science may not go, and no man must be permitted to teach unless he has passed through the gateway of the divinity school’; the moment he enters the arena of business life and says, ‘I understand all about bonds and stocks and railroads, and I have a right to determine what is right and what is not’; the moment he presents himself in city hall, or where the legislature of a state is convened, or beneath the great dome of the Capitol where Congress meets to determine the welfare of the nation, and assumes to say that ‘because I am a minister I have a right to prescribe the terms, the limits and the character of legislation, city, state or national,’ that moment the common sense of the community says to him most emphatically, ‘go back to your pulpit and leave matters of education and business and legislation to those who are trained therefor.’ […] And if in the future the ministry is to remain a welcome and acknowledged power it can do so only as it stays in the pulpit. The moment it !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 As adapted from opening remarks delivered by the author at the dissertation defense, Sept. 25, 2014. ! 3! goes outside of that, it jostles with everybody, and has no right to complain if everybody gives it a kick.2 Brewer’s address is relevant to this study because it highlights important questions about the differentiation of religious and other social spheres, and about how the
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