Teaching American Religious Freedom

Charles McCrary


The subfield of American law and religion remains preoccupied with the First Amendment, although some scholars have begun to connect this work to other intersections of religion with law, such as in corporation, property law, intellectual property, and tax codes. Many historians of law and religion have backgrounds in law, often including a JD. My lack of legal training limits my ability to study just any “law” topic and find its junctures with “religion,” so in past courses I have stuck mostly to the standard First Amendment questions. Why was it written? How did the interpretations change over time? Are the establishment and free exercise clauses in tension? If so, why? Did the Supreme Courts of the middle decades of the twentieth century fundamentally alter the meaning of the First Amendment, or did they restore its original spirit? These are all good questions, but they leave out a great deal, and they tend to keep the narrative centered on the federal level, an anachronistic focus (since the religion clauses were not incorporated against the states until the 1940s, and even then weren’t used much until the 1960s) that occludes the day-to-day interactions between law and religion, at the state and local levels. My partial remedy for these problems is to focus more broadly on “freedom” itself, and some basic questions about the roles states play in defining religion and enforcing its boundaries, the assumptions that structure those classifications, and so on.

This course will be different from others I’ve taught in at least one significant way, and this is the issue on which I’d be most interested in reader feedback. It will be a heavily discussion-based course, with in-class discussions and a discussion board online, and so I’m keeping the structure loose to let conversations develop and let the students drive the agenda. One potential problem with this approach is that students sometimes ask the wrong sorts of questions. Some students come to a religious studies course expecting to engage in some theological reflection. For some reason, I actually do not run into this problem very often, but when I do, the students usually understand very quickly how to reframe their questions as critical and historical. If I were teaching world religions or history of Christianity, it would be inappropriate to ponder the ultimate truth of Confucian ideas or whether we believe in the divinity of Jesus. But in this course, this sort of cordoning makes less sense. We’re interested in tracing a history of American religious freedom, and our main questions are not about whether a particular decision was a good or bad one. But, given the relevance and importance of these topics, why not entertain these questions? These are not necessarily about students’ religious beliefs, but they are public questions with which we can engage in public. Of course, I’ll have to be careful to make sure students’ discussions don’t devolve into anecdotally based opinionating or the uncritical recitation of political talking points. These are public issues, and I don’t see why we should not discuss them in a public university. That being said, maybe I’m asking for trouble. What experiences have you had with this type of discourse in your courses?

The book list, unlike the discussion topics, is locked in. We will start with Steven D. Smith’s The Rise and Decline of American Religious Freedom, which is a lively and provocative counter-narrative to what Smith calls the “standard story” of American religious freedom. I expect the book to be controversial among students, because Smith’s points are well made, but I imagine many students might find the implications troubling. Smith argues that the Supreme Court did not recover the original spirit of the First Amendment in the mid-twentieth century but instead fundamentally changed its meaning. In so doing, they helped to undo what Smith calls the “American settlement” within which secularists and providentialists could debate in public. Whether we want this sort of open public discourse is a matter for debate—which we’ll be having throughout the semester. We’ll combine Smith’s book with Sarah Barringer Gordon’s more celebratory account, The Spirit of the Law. What I like most about Gordon’s book is the way she emphasizes the lives of individuals whose religious beliefs and practices led to interactions with the law, and how law in turn shaped their practices. It places characters, usually protagonists, into our narrative. For a midterm of sorts, students will write a response/analysis based on Tisa Wenger's We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. The semester will conclude by broadening our geographical scope with some discussion of Elizabeth Shakman Hurd's Beyond Religious Freedom: The New Global Politics of Religion, which also will help us think more about the effects of defining religion and what is at stake in the politics (and realpolitik) of religious freedom. See Mike Graziano's and Lauren Turek's posts about the book here and here.

As I said, the syllabus is still in the making, so any suggestions are appreciated. What do you think, reader? Should we take up prescriptive public questions? (How do we define those?) What are the most important topics for understanding American religious freedom? In what ways is the "religion and law" framework useful or limiting? What are the benefits or drawbacks of thinking more broadly about "freedom" and thinking internationally and globally as well as within the American constitutional tradition?


Hey Charlie. Interpellating me as "reader" was a good way to make me feel like I should respond.

I think we've talked a bit about this but you could base a lecture on a chapter from Sylvester's book. Probably Chapter 8 (same material I used when guest lecturing for your class). The usefulness of this might depend, however, on how strictly you are focusing on law in the technical sense. Seems like you are shifting towards a focus on freedom as a discourse, institution, or project in the Asadian sense. The introduction, chp. 8, and conclusion of Sylvester's book might help the students think about freedom along these lines, although if you go this route I think you might want to provide some prefatory material on race to prep the students for this reading.

Opening up discussion to prescriptive judgments about the cases is a good way to get them engaged, I imagine. Maybe bracket that type of judgment until you've really covered the political stakes and epistemologies at work? You probably don't want them to think that coming to a judgment of the case at hand was the singular goal of the course all along, right? Hopefully someone with more experience teaching law chimes in.

I really like the readings and questions you're posing for this course. Keep us updated!

Charlie McCrary said…
Hi Jeff. Thanks for this thoughtful comment. Sorry about the slow reply. Travel, etc.

You're right about how I'm shifting the focus toward freedom and how I'm conceptualizing it. Your recommendation about identifying the stakes and epistemologies is well taken. I don't think I had fully taken into account how incompletely realized some of these issues will be, particularly at the beginning of the semester. Debating the merits of a particular decision--especially if there seems to be a clear "right" side--doesn't appeal to me so much as trying to talk about that decision's implications for broader questions. How do religious exemptions impact our idea of the "public"? And, the tentative prescriptive questions: Should there be more accommodations? How do we maintain the balance between free exercise and public good? But, of course, as you note, these conversations are impoverished if we haven't thought carefully about what implicit assumptions might be at work, how these calculations (disproportionately) affect certain groups, and so on.

Thanks again.