Supreme Court Justices In The Pews and On The Bench – Where Neil Gorsuch Fits In

 

Supreme Court nominee, Neil Gorsuch. Joshua Roberts

 

Steven K. Green,
Willamette University

On Jan. 31, President Donald Trump nominated Judge Neil M. Gorsuch of the Tenth Circuit Court of Appeals to fill the vacancy on the Supreme Court occasioned by the death of Justice Antonin Scalia. The Senate hearing on Judge Gorsuch’s nomination to the Supreme Court started on Monday, March 20.

As important as is a Supreme Court confirmation, Congress and the media have focused chiefly on the numerous controversies that have embroiled the new Trump administration. One media outlet even called Gorsuch’s confirmation process the “stealth Supreme Court nomination.”

Judge Gorsuch has a reputation as a judicial conservative in the mold of Scalia. He has not ruled on several controversial issues such as gun rights, but the conventional wisdom among court watchers is that if confirmed, the “young” (49-year-old) Gorsuch will swing the high court back to the right on many social issues and will impact Supreme Court jurisprudence for decades to come. As a result, progressive interest groups are scrambling to marshal their forces to oppose Gorsuch’s confirmation.

Judge Gorsuch has a notably strong record on one controversial subject, that being on church-state matters. His rulings have generally supported a more “accommodationist” approach to resolving church-state controversies, a position advocated by religious conservatives. In addition, during the White House announcement ceremony for his nomination, Judge Gorsuch remarked that he was “thankful for my family, my friends, and my faith.”

His statement raises the question of whether a judge is influenced to rule a particular way on church-state controversies by his or her religious faith.

I am a constitutional law professor who specializes in church and state matters. I have also participated in more than 25 church-state cases before the Supreme Court as counsel and through friend-of-the-court briefs.

In my view, the religious faith of a justice, standing alone, tells us little about how he will vote in church-state cases or on other controversial social issues. It is a conservative religious worldview that is more likely to reinforce and validate an existing conservative judicial ideology.

Gorsuch’s judicial decisions

Following Trump’s announcement, conservative religious groups such as Focus on the Family and the Family Research Council praised Gorsuch’s nomination. The evangelical magazine Christianity Today declared that Gorsuch will be a justice “that evangelicals will love.” In contrast, progressive religious groups have voiced opposition to Gorsuch’s nomination based on his church-state holdings.

Little is known about Gorsuch’s personal faith other than that he is religiously observant. Gorsuch was raised Catholic, attending a private Jesuit school in his youth. He became an Episcopalian while a graduate student at Oxford, the religion of his wife whom he met while in England. Currently the judge attends a mainline Episcopal church in Boulder, Colorado, that takes progressive stances on social issues.

The liberal orientation of Gorsuch’s church stands in contrast to his own record of judicial decision-making. During his 10-year tenure on the Tenth Circuit Court of Appeals, Gorsuch has taken a firm stance on behalf of protecting religious liberty claims against government regulations, a position that has made him a favorite of religious conservatives. Several of those cases have been highly controversial.

Protesters rally outside the Supreme Court against President Donald Trump’s Supreme Court nominee Neil Gorsuch in Washington, D.C. on Jan. 31. Yuri Gripas

The infamous Hobby Lobby case is one example. In that case, the Supreme Court held that for-profit corporations may assert a religious liberty defense against having to comply with the contraceptive care insurance mandate under the Affordable Care Act. Judge Gorsuch wrote a concurring opinion in the Tenth Circuit’s decision that went even further, urging that courts should defer to a person’s subjective claim that a law burdens his religious beliefs, regardless of how tangential that burden appears objectively.

Little Sisters of the Poor is another example of a case that involved the question of a religious exemption from complying with the ACA. In that case, the Catholic order that operates nursing homes claimed that even applying for an exemption under the ACA from the government violated their religious beliefs. Gorsuch dissented when the Tenth Circuit declined to reconsider its decision rejecting the Little Sisters’ religious liberty claims. That dissent argued that the court had given insufficient deference to the Little Sisters’ own articulation of the burden on their religious beliefs.

He has also written or joined on opinions siding with the ability of governments to display religious symbols on public property, such as a Ten Commandments monument on courthouse lawns. According to one bipartisan analysis of Gorsuch’s record:

“The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government [nondiscrimination] programs.”

Religious affiliations in Supreme Court

The question many people are asking is, will Gorsuch’s religious affiliation matter? First, let’s look at the religious makeup of the Supreme Court.

Currently, the Supreme Court comprises five Catholics and three Jews (Justice Scalia was also Catholic). This has led some commentators to speculate on what this means for issues such as abortion regulations and church-state matters.

The vast majority of justices have been Protestants, which is not surprising considering the Protestant dominance of the culture until recently. President Andrew Jackson appointed the first Catholic to the Supreme Court (Chief Justice Roger Taney) in 1836, a fact that did not go unnoticed. The next Catholic justice, Edward D. White, was appointed in 1894, some 58 years later. (White was more controversial for being a former Confederate officer than for being Catholic)

The first Jewish justice was appointed in 1916 (Louis Brandeis), to be followed by Benjamin Cardozo in 1932, which established the unofficial “Jewish seat” on the court. From 1940 forward, there has always been at least one Catholic and one Jewish justice on the high court (absent a hiatus from 1969 to 1993 of a Jewish justice).

Those demographics have changed significantly over the past two decades. With the resignation of Justice John Paul Stevens in 2010, the court was left without a Protestant member for the first time in its history.

Here’s what history tells us

In most instances, research shows, a justice’s religious faith has been a poor predictor of his or her judicial philosophy (and that would assume that one can draw accurate conclusions about what any religion requires of its adherents).

For example, is it safe to assume that a Catholic justice will vote against abortion and gay marriage because of the teachings of the Catholic Church?

Catholic Justice Frank Murphy (1940-1949) was a staunch New Deal liberal, whereas Catholic Justice William Brennan (1956-1990) was likely the Supreme Court’s fiercest supporter of church-state separation and reproductive choice during his long tenure.

Currently, Catholic Justice Sonia Sotomayor is considered to be part of the court’s liberal wing. Another notable liberal was Justice Hugo Black (1937-1971), who was a Southern Baptist, while two conservative justices were William Howard Taft (1921-1930) (Unitarian) and William Rehnquist (1972-2005) (Lutheran).

And though Catholic Justice Anthony Kennedy usually sides with the conservatives, he has voted to uphold abortion rights and gay marriage. Likely the closest religious indicator of judicial philosophy has been among the court’s Jewish justices, who have overwhelmingly been liberal.

To be sure, there have been some exceptions. Justice William Strong (1870-1880) was an evangelical Presbyterian who served briefly as president of a religious organization that sought to amend the Constitution to declare the United States a “Christian nation.”

Similarly, Justice David J. Brewer (1889-1910) was an evangelical Congregationalist who declared in a court opinion that America was a Christian nation, a matter he wrote about at length off the bench. And Justice Felix Frankfurter (1938-1962), a secular Jew, frequently referenced his religious/ethnic heritage in his strong support for church-state separation.

But those instances have generally represented the exceptions.

The safest conclusion to draw from history is that religious affiliation is probably a poor indicator of judicial philosophy. It generally does not preordain any judicial holdings. However, a conservative religious outlook may reinforce an existing conservative judicial ideology, and vice versa, particularly on social issues.

Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette University

This article was originally published on The Conversation.

Songs of Worship – Why We Sing To The Lord

By David W. Stowe
Michigan State University
February 11, 2017

This Saturday, Feb. 11, many Jews will celebrate Shabbat Shirah, the Sabbath of Singing, which commemorates one of the most vivid musical performances in the Hebrew Bible: the songs sung by Moses and his sister Miriam to celebrate the Israelite crossing of the Sea of Reeds (Red Sea) in their dramatic escape from bondage in Egypt.

This Song of Miriam exemplifies one dominant motivation for sacred music: collective celebration.

“Then Miriam the prophet, Aaron’s sister, took a timbrel in her hand, and all the women followed her, with timbrels and dancing. Miriam sang to them:
‘Sing to the Lord,
for he is highly exalted.
Both horse and driver
he has hurled into the sea.’”

As a cultural historian, I have been studying the relationship between music and religious experience for two decades. Music has been crucial to religious experience across history and region.

Sacred music has a unique ability to engage both body and mind. It brings people together in expressing gratitude, praise, sorrow and even protest against injustice.

Why religion needs sacred song

More than three millennia after Miriam, singing continues to be a widely observed expression of thanksgiving and gratitude, whether or not couched in religious language or occurring in a sacred space.

Singing bhajans.
Vrindavan Lila, CC BY-ND

Jews and Christian sing psalms that celebrate the glory of creation and the god who created it; Muslims offer “na’t” in honor of the Prophet Muhammad; and Hindus chant “bhajans” to express their devotion to Shiva or Krishna. In many American evangelical churches, pop-influenced congregational singing, generally referred to as “praise music,” has replaced old-school hymns.

At the other end of the emotional spectrum, sacred music is the preferred medium for expressing mourning and lament. African-American churches commonly referred to such songs of trouble and grief as “sorrow songs,” in contrast to the more upbeat celebratory “jubilee songs.”

Indeed, the climactic final chapter of historian and civil rights activist W.E.B. DuBois’ classic collection, The Souls of Black Folk, is titled “Of the Sorrow Songs.” He offers an eloquent tribute to the power of the spiritual, when he says,

“And so by fateful chance the Negro folk-song – the rhythmic cry of the slave – stands to-day not simply as the sole American music, but as the most beautiful expression of human experience born this side the seas.”

Many Hebrew psalms are classified as laments and have been sung by monastics and lay worshipers, Jewish and Christian, for 2,000 years. Islam has its own tradition of lamentation dirges, called “nauha,” typically sung by Shiite Muslims in mourning for the martyrs of the Battle of Karbala in 680 AD, which initiated a bitter succession struggle that still resounds through the Muslim world.

The blues, which have so profoundly shaped American popular music – from jazz and rhythm & blues to soul – are regarded as a secular counterpart to the songs that arose out of conditions of chattel slavery, as the theologian James Cone memorably explores in his seminal study, “The Spiritual and the Blues.”

Just as the experiences of ecstasy and gratitude are heightened by giving vocal expression in collective singing, so the pain of injustice and uncertainty are relieved by vocal release through music.

Former President Barack Obama too broke into what seemed like a spontaneous rendition of “Amazing Grace” at the eulogy he delivered at the historic church in Charleston, South Carolina, following the mass murder of nine church members by a white supremacist in 2015.

Why should this be?

Sacred song is one of the most social aspects of religious practice. But it is also an intimate embodied experience. The singer draws meaning from her or his core being: She feels the sound being produced as she hears it.

Creating musical tone in one’s chest and throat provides sensuous pleasure, amplified by what sociologist Emile Durkheim referred to as “collective effervescence” – the collective energy generated when groups come together in a shared purpose. This concept has been explored extensively by sociologist Randall Collins in his work on interaction ritual chains.

Personally, I have experienced this most intensely while singing shape-note music, which might be described as the heavy metal of American roots music (with a Calvinist twist).

Why communal singing is joyous

Worth noting in the Miriam singing we began with is the way in which singing and dancing are conjoined.

Disembodied music of the sort we take for granted through MP3s and earbuds, or even sitting passively in a concert hall, is a recent historical development. The most intense experience of unity between body and music is called trance. “[Trancing]
is a profound mystery,” writes ethnomusicologist Judith Becker.

“You lose your strong sense of self, you lose the sense of time passing, and may feel transported out of quotidian space.”

Communal singing is more joyous.
cristian, CC BY-NC-ND

Ordinary worshipers often get at least a taste of this when they sing in community. Communal singing plays a role in the release of oxytocin, the “cuddle hormone” instrumental in the pleasures of social bonding.

Music, religion and political protest

The Abrahamic faiths that trace their origins to the Hebrew Bible have a long history of linking sacred song to the struggle against injustice and oppression. This tradition comes out of the Hebrew prophets like Isaiah, Jeremiah, Ezekiel and Amos. Social protest is a strong thread in the psalms, which provided the central worship songs for Jews and Christians.

My most recent book studies just one text, Psalm 137, which includes the famous line,

“How shall we sing the Lord’s song in a strange land?”

This is a psalm that mourns the plight of Judeans held captive in Babylon after the destruction of the Jerusalem Temple in 587 B.C. This has been used as a rallying cry for religious and political movements for many centuries.

And indeed it seems that music may play a part in the mass protests of the Trump era. Secular spirituals like “We Shall Overcome,” with its roots in the black church, are always ready to be dusted off. But this time, Woody Guthrie’s “This Land Is Your Land” has already been promoted by the political resistance as a reminder of the earlier, more inclusive vision of American nationhood. Lady Gaga even managed to take it into her Super Bowl halftime show without raising alarms. New versions of the Song of Miriam continue to be rewritten and sung, as songs that celebrate triumph over oppression or injustice.

As Becker says,

“You cannot argue with a song sung in soaring phrases, with drum rhythms you are feeling in your bones, surrounded by friends and family who are all, like you, structurally coupled, rhythmically entrained.”

Editor’s note: the original version of this story inadvertently identified the Battle of Karbala as having taken place in 680 BC instead of 680 AD.

The Conversation

David W. Stowe, Professor of English and Religious Studies, Michigan State University

This article was originally published on The Conversation. Read the original article.

What’s Missing in The Teaching of Islam

 

Kishwar Rizvi, Yale University

There has been much misinformation about Islam. Reports in Western media tend to perpetuate stereotypes that Islam is a violent religion and Muslim women are oppressed. Popular films like “American Sniper” reduce places like Iraq to dusty war zones, devoid of any culture or history. Fears and anxiety manifest themselves in Islamophobic actions such as burning mosques or even attacking people physically.

At the heart of such fear is ignorance. A December 2015 poll found that a majority of Americans (52 percent) do not understand Islam. In this same poll, 36 percent also said that they wanted to know more about the religion. Interestingly, those under 30 years were 46 percent more likely to have a favorable view of Islam.

These statistics highlight an opportunity for educators. As a scholar of Islamic art and architecture, I am aware that for the past 20 years, educators have been trying to improve the teaching of Islam – both in high school and college history courses.

The problem, however, is that the teaching of Islam has been limited to its religious practice. Its impact on the arts and culture, particularly in the United States, is seldom discussed.

What teaching of Islam misses

In high school history books, there is little mention of the intertwined histories of Europe, Asia and Africa in the middle ages and the Renaissance. There is even less mention of the flowering of art, literature and architecture during this time.

In a world history textbook for New York public high schools, for example, the “Muslim World,” appears in the 10th chapter. In condensing a thousand years of history – from the seventh to the 17th century – it focuses only on “Arab armies” and the rise of early modern Muslim empires.

Palatine Chapel borrowed from the art of the Fatimids.
Al-dabra, CC BY-NC-ND

Such narrow focus misses out on the cultural exchanges during this period. For example, in medieval Spain, the Troubadour poets borrowed their lyrical beauty from Arabic. Arabic was the courtly language of southern Spain until the 15th century. Similarly, the 12th-century Palatine Chapel in Sicily was painted and gilded in the imperial style of the Fatimids, the rulers of Egypt between the 10th and 12th centuries.

Such exchanges were common, thanks to the mobility of people as well as ideas.

The point is that the story of Islam cannot be told without a deeper understanding of its cultural history: Even for early Muslim rulers, it was the Byzantine empire, the Roman empire and the Sassanian empire (the pre-Islamic Persian empire) that provided models. Such overlaps continued over the centuries, resulting in heterodox and cosmopolitan societies.

The term “Middle East” – coined in the 19th century – fails to describe the complex social and cultural mosaic or religions that have existed in the region most closely associated with Islam – and continue to do so today.

How the arts can explain important connections

So, what should educators do to improve this literacy?

From my perspective, a fuller picture could be painted if identities were not to be solely defined through religion. That is, educators could focus on the cross-cultural exchanges that occurred across boundaries through poets and artists, musicians and architects. Both in high school and university, the arts – visual, musical and literary – could illustrate the important connections between Islam and other world histories.

For example, a class on the Renaissance could explain how the 15th-century Italian painter Gentile Bellini gained famed at the court of Mehmet II, the conqueror of Istanbul. Mehmet II commissioned Bellini to design an imperial portrait that was sent to rulers throughout Europe. His art presents a wonderful example of the artistic exchanges that took place between early modern cities such as Delhi, Istanbul, Venice and Amsterdam.

It might also help students to know that the Dutch painter Rembrandt collected Mughal miniature paintings. Silks from the Safavid empire (the Iranian dynasty from the 16th to 18th century) were so popular that Polish kings had their coat of arms woven in Isfahan.

This exchange of art continued into the Age of Enlightenment, a time when ideas around politics, philosophy, science and communications were rapidly being reoriented in Europe. A class on the Enlightenment may highlight the fact that writers like Montesquieu turned to the Middle East to structure a critique of their own religious institutions.

Goethe found inspiration in Persian poetry.
kaythaney, CC BY-NC

A poetry class could similarly show connections between the German author Wolfgang von Goethe’s writings and Islam, as exemplified in his “West-Eastern Diwaan,” a collection of poems. This epitome of world literature was modeled after classical Persian poetry in its style, and inspired by Sufism, the mystical tradition in Islam.

Most students are open to seeing these connections, even if it might require overcoming their own preconceptions about Islam. For example, when I teach my class on medieval architecture, students are surprised to learn that the two oldest continuously run universities in the world are in North Africa (in Fez – a city in Morocco – and Cairo).

Indeed, it is not easy to disentangle contemporary politics from historical fact, to teach more fully the culture and diversity of a religion that is almost 2,000 years old.

Perhaps educators could learn from a recent exhibition at the Metropolitan Museum of Art in New York titled “Jerusalem 1000-1400: Every People Under Heaven.” The show illustrates how Abrahamic religions – that is, Christianity, Judaism and Islam – borrowed freely from each other in the realm of art, music and literature. Jerusalem was home to diverse populations and the arts played an important role within its religious and political life.

Muslims in America

It’s not in the past alone. We see these connections continue today – here in America, where Islam is an intrinsic part of the culture and has been for centuries.

From the Mississippi delta to the Chicago skyline, Muslims have made contributions, which might not be so obvious: West African slaves in the South were central to the development of the blues. Its complex vocalization and rhythms incorporated the rituals of Islamic devotion many of them had to leave behind.

The same is true of architecture. A quintessential example of modern American architecture is the Sears Tower in Chicago, which was designed by the Bangladeshi-American structural engineer Fazlur Rahman Khan.

Muslim contributions to art and architecture don’t just reflect the diversity of America, but the diversity of Islam in this country. Muslims in America comprise a rich tapestry of ethnicities, languages and cultures. This knowledge is particularly meaningful for young Muslim Americans, who struggle to claim their place in a country in which they are sometimes made to feel like outsiders.

Educators, especially within the arts and humanities, have an important role to play in this religious literacy, that helps students understand the unity in the diversity. After all, as the most popular poet in America, the 13th-century Muslim mystic Rumi wrote:

All religions, all this singing, one song.
The differences are just illusion and vanity.

The Conversation

Kishwar Rizvi, Associate Professor in the History of Art Islamic Art and Architecture, Yale University

This article was originally published on The Conversation. Read the original articl