Bounds of Their Habitation

by Paul Harvey

  Requiring Oregon to make an exemption to its laws prohibiting the use of drugs because of the religious beliefs of this particular group of respondents would create a “private right to ignore generally applicable laws,” Scalia said. “Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation.” But this was not the case, Scalia insisted. To allow individuals to selectively obey laws, and to argue for free exercise when they chose not to, would indeed permit them to become a law unto themselves, which contradicted “both constitutional tradition and common sense.” There was no “private right to ignore generally applicable laws,” something that was well recognized on issues of race or free speech, for example. It was true, Scalia acknowledged, that this ruling would tend to “place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” While concurring with the decision, Justice Sandra Day O’Connor vigorously dissented from the rejection of the “compelling interest” test. “There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions,” she wrote, “for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion.” Freedom of religion was a constitutional norm, not an “anomaly.” O’Connor considered Oregon to have just enough compelling state interest in this case to make its law valid, although the matter was close. The dissenters in Smith likewise insisted on maintenance of the compelling state interest test and found no reason to believe that making an exemption for the sacramental use of peyote would unduly burden the state.

  In other cases as well, Indian religious rights have been superseded by state interests, in part because the court has interpreted religious practices as cultural or traditional in nature. The case of Sequoyah also illustrates this point. The court held that constructing a dam in the Tennessee River valley, in lands held to be sacred by the Cherokees, would not violate First Amendment rights. The Cherokees had not demonstrated the “centrality and indispensability” of the valley: “The overwhelming concern of the affiants appears to be related to the historical beginnings of the Cherokees and their cultural development. It is damage to tribal and family folklore and traditions, more than particular religious observances, which appears to be at stake. The complaint asserts an ‘irreversible loss.’ . . . Though cultural history and tradition are vitally important to any group of people, these are not interests protected by the Free Exercise Clause of the First Amendment.”

  Sequoyah and other similar cases led to the most significant of these decisions, Lyng v. Northwest Indian Cemetery Protective Ass’n, a case involving the government building a forest road in Northern California through lands held sacred by three tribes in the area. The court held that the government’s compelling interest in eminent domain for the roads did not violate First Amendment protections. The court reasoned, first, that the “Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of its particular citizens.” The building of the road did not ask individuals to violate their beliefs, and it did not penalize them for practicing their religion. The key phrase in the First Amendment was “prohibit,” the court pointed out, and the government was not doing any prohibiting in this case, while individual religious practitioners were demanding relief from a government that was not to be involved with religion. This was notably true in a previous case involving building a logging road through lands considered sacred by one tribe. In that case, the court held that the land was not “central” to the religious practices of the Indian group. The court was unpersuaded as to the centrality of the place, in part because there was no set or fixed body of doctrine that it could point to as a basis for ruling on the First Amendment.

  Thus, just as Deloria had perceived in God is Red, the nature of Indian religious belief and practice simply does not fit well into what American society perceives and defines as “religion.” Such a definition generally involves a sacred text, particular institutions and the practices performed within those institutions, and clear lines of religious authority. Arising from traditions that predated such a separation of sacred from secular, and lacking what Americans looked for when they sought out something perceivable as “sacred,” Native American traditional practices were bound to have a difficult time within First Amendment church and state cases. Ironically, their very struggles, and congressional action resulting from them in the 1990s, ended up benefiting most those who began to argue for “religious liberty” from government edicts regarding access to contraception. The most obvious beneficiaries of Native struggles for recognition of their religious practices, in other words, turned out to be members of the religious right, who themselves organized initially in hostile response to civil rights uprisings of the 1960s.

  RACE, RELIGION, AND THE RIGHT

  In the 1950s and 1960s, the long history of race and religion in the South ran through segregationist theology and deeply shaped the consciousness of white southern churchgoers. But in the civil rights era, the base assumptions underlying the white southern Christian narrative lay bare. In the harsh light of national public disgust and attack by denominational leaders even within the region, the intellectual edifice of the white southern religious framework crumbled.

  But the social power of the religious right came in recapturing historic white southern themes and recasting them in politically potent ways. The movement of the religious right from criticism of civil rights activism to their own forms of politically potent organizing occurred rapidly in the 1970s. Originally opposed to religious involvement in civil rights on the basis of the “spirituality of the church,” but embarrassed by public spectacles of expelling prospective worshippers and espousing racist rhetoric, white religious conservatives had to reinvent tradition for a new day.

  In a famous (if later disowned) sermon on “Ministers and Marches” from 1965, Jerry Falwell explained the opposition of many white evangelicals toward deliberate political activism (here directed at Martin Luther King and black civil rights ministers of that era): “Preachers are not called to be politicians but to be soul winners. . . . If as much effort could be put into winning people to Jesus Christ across the land as is being exerted in the present civil rights movement, America would be turned upside down for God.” By the late 1970s, however, a surge of activism fueled the religious right. Angered by IRS rulings against some of its prized institutions (such as Bob Jones University in South Carolina, which had continued its racially discriminatory practices), morally offended by Roe v. Wade and legalized abortion, concerned about a perceived national decline in defense and economic strength, and bewildered by a moral revolution that seemed to assault their deepest values, a generation of evangelical leaders energized a constituency in defense of traditional values. This was a national movement, with pockets of strength across the country, but especially in the South, where the Republican Party benefited from anger at the civil rights acts passed by Democratic administrations in the mid-1960s. Activists from the religious right intentionally invested hopes in the conventional means of politics to rescue Christian America from the forces (such as humanism and the decline of the “traditional family”) that conservatives believed undermined Christian morality.

  By the 1970s, many white southern believers accommodated themselves to the demise of legal segregation. Thus, in the recent controversies within southern church organizations, race has been one of the very few items usually not in dispute. Since the 1960s, southern religious conservatives, for the most part, have repudiated the white supremacist views of their prede
cessors.

  Yet the standard biblical arguments against racial equality, now looked upon as an embarrassment from a bygone age, have found their way rather easily into the contemporary religious right’s stance on gender. A theology that sanctifies gendered hierarchy has become for the post–civil rights generation what whiteness was to earlier generations of believers. For religious conservatives generally, patriarchy has supplanted race as the defining first principle of God-ordained inequality. Ultimately, leaders of the religious right mobilized a large segment of white evangelicals across the country and turned them into the most reliable base of the conservative wing of the Republican Party. As a force for political mobilization, that was an impressive achievement, given the relatively skeptical view evangelicals held before then toward what could be accomplished through politics. As an indicator of the continued power of race and religion, it was a significant symbol of how Americans could still be divided by faith, into racial religiopolitical blocs.

  CONCLUSION

  Liberation theologies arose as formal statements in an age when conservative political movements gained strength, and then power. They emerged too in an age when newfound black political power met economic realities of declining tax bases in cities that blocked the realization of dreams for which civil rights activists had fought. And liberation theologies showed their limits, too, when applied to the issues most affecting Native Americans, for whom Christian language and symbols could prove troublesome or damaging to their interests.

  In the complicated tangle of these stories, we see something of the continued importance of divisions of religion and race in an increasingly multicultural America. The rapid growth of pluralism in American life since 1965, in both the composition of population and in the growth of religious traditions outside the Judeo-Christian framework (or outside the “Abrahamic” tag given to the Judeo-Christian-Islamic triad), is in the process of transforming American life. But the United States remains a country where whites remain a majority in demography and Christians a large majority in terms of religious adherence. In that sense, American history is meeting the American future, fueling both social conflicts and suspicions, as well as remarkably rapid adaptations. While many insist on preserving America’s character as a “Christian nation,” political figures publicly recognize celebrations of Eid (the end of the Muslim holy month of Ramadan), host Diwali (Hindu festival of lights) festivals, and warn against responding to acts of violence and terrorism with religious bigotry. The tension between the American religious past, and its future, provides fodder for political debates, social conflicts, and cultural experiments in public pluralism. This seems especially evident when applied to the case of Muslims and other immigrant groups in twenty-first-century America.

  Epilogue

  Contemporary Dilemmas of Pluralism

  A PEW RESEARCH CENTER STUDY released in 2015 calculated that, since the 1965 Hart-Celler Immigration Act, about fifty-nine million immigrants (documented and undocumented) had come to the United States over the past fifty years. The largest number came from Mexico, the Philippines, Korea, the Dominican Republic, India, Cuba, the former Soviet Union, and Vietnam. Unlike previous eras, when Europeans dominated immigrant-sending countries, from 1965 to 2015, just twelve percent of immigrants were from Europe. As late as 1970, Europe had remained the largest source of immigrants, but the situation changed quickly thereafter. Taking the totals from 1965 to 2015 cumulatively, approximately half of the total immigrant wave came from Latin America (including documented and undocumented immigrants from Mexico and Central America), about twenty-five percent from Asia (including South, Southeast, and East Asia), and about eight percent from Africa. This contrasts starkly with the other great period of immigration from 1880 to 1920 discussed in chapter 5, when just under ninety percent of immigrants originated in Europe. Immigration peaked in the period from 2000 to 2005, when about eight million people entered the country; since then, the figure from 2008 to 2013 is about six million. Immigration, both legal and illegal, from Latin America peaked in the 1990s, and has since declined; since 2011, Asian immigrants have taken the lead in terms of total numbers per year. Overall, immigrants accounted for fifty-five percent of American population growth during this fifty-year period, and the foreign-born population of the country rose from five percent in 1965 to fourteen percent in 2015.

  Juxtaposing this wave of immigration with statistics about the religious affiliations of Americans (and how those break down racially and geographically) suggests much about the ongoing tensions between the Christian history and pluralist present of the United States. Recent surveys from the Pew Research Center have shown that America remains a predominantly Christian country, but that the share of those self-identifying as “Christian” is in decline, from about seventy-eight percent in 2007 to seventy percent in a 2014 survey. The numbers claiming “no religious affiliation,” often referred to as “nones,” are growing markedly, from a figure of sixteen percent in 2007 to over twenty-two percent in 2014. Meanwhile, those claiming non-Christian traditions—Jews, Muslims, Hindus, Buddhists, Sikhs, and others—have risen as a share of the population from just over four percent in 2007 to nearly six percent. And the share of racial and ethnic minorities within various Christian traditions is soaring—forty-one percent of American Catholics in 2014 (as compared to thirty-five percent in 2007), twenty-four percent of American evangelical Protestants (as compared to nineteen percent in 2007), and fourteen percent of mainline Protestants (as compared to nine percent in 2007). The majority of “new” immigrants since 1965, in fact, are Christian, and as these figures show they are remaking American Christian churches, as part of what one scholar has called the “de-Europeanization of American Christianity.” As he concludes, “race and religion are increasingly decoupling.” Another scholar analyzing demographic data has described what he calls “the end of white Christian America.” Images of Christianity in America, church leaders have pointed out, must incorporate Asians in Bible studies, Mexicans conducting Passion Plays during Holy week, and Ethiopians gathering in Eastern Orthodox congregations.

  Because census takers are not allowed to gather religious data, these figures come from surveys that sample the population. Thus, they should be understood as very approximate numbers with a considerable margin of error. Moreover, the numbers themselves change depending on how terms are defined—for example, are Methodists counted as “mainline” or “evangelical” Protestants? And how do you count “nones” who nonetheless also self-describe as “spiritual but not religious”? How about those born Jews who incorporate Buddhist practices into their daily lives? Surveys always suggest much about the conceptions the survey takers themselves bring to the enterprise.

  Caveats aside, putting together the impressive numbers on immigration statistics over the last fifty years, and the data on religious affiliations and attitudes suggested by surveys, raises important questions about the future of religion and race in American history. What will race and religion “look” like in an increasingly multiracial and plural society, one still “divided by faith” in terms of race but one in which race no longer defines religion in the ways that it historically has?

  Events in the very recent past have provided much fodder for both the optimistic and pessimistic views of the interaction of race and religion in American history.

  On a June evening in 2015, a young white man named Dylann Roof came to the Wednesday evening prayer meeting at the Emanuel African Methodist Episcopal Church in Charleston. He sat for an hour that evening with a small group of congregants. They were led in Bible study by Clementa Pinckney, their pastor who also served as a South Carolina State Senator. After that hour, Roof rose up and began shooting, while allegedly declaring, “I have to do it. You rape our women, and you’re taking over our country. And you have to go.” He murdered the pastor and eight others, an event with an eerie connection to violent attacks on this church in its past.

  Emanuel AME (known under a different name in
the nineteenth century) had a long and storied history, dating from the 1810s and its connection with Denmark Vesey, a free black man who allegedly was the ringleader of a narrowly aborted revolt in 1822 in Charleston. The backlash to the Vesey Revolt ended in the church being burned down and the organization of the African Methodist Episcopal Church banished from the state. The church returned after the Civil War, its physical construction being supervised by Denmark Vesey’s son, a carpenter by trade. By the 1960s, it housed civil rights organizing meetings. In 1969, the church served as a gathering point for striking black hospital workers, who heard a message from the widow of Martin Luther King, slain a year earlier while in Memphis to preach to striking garbage workers. By 2015, Emanuel AME stood squarely within Charleston’s thriving tourist district. By that time, the governor of the state was Nimrata (Nikki) Randhawa Haley, the daughter of a family of Indian Sikh immigrants who had launched a career as a conservative Tea Party insurgent in the state Republican establishment.

  Ghosts of the violent past of race and religion in American history rose up in the guise of troubled young men like Roof and in the Confederate symbols and monuments pervasively visible throughout the region. Prior to his act, Roof had immersed himself in racist hate literature. He had compiled material from the “Council of Conservative Citizens,” a politically well-connected group descended from the White Citizens’ Councils of the civil rights era. Commentators pointed out the irony of how the Confederate flag rose at full height outside the State Capitol grounds in Columbia, even as the American flag stood at half-staff. A horse-drawn carriage pulling the coffin of the Reverend Clementa Pinckney rolled under that Confederate battle flag, an emblem that still flew in numerous public locales throughout the region as an emblem of “heritage.”