Green, The Bible, the School, and the Constitution

The Bible, the School, and the Constitution: The Clash that Shaped Modern Church-State Doctrine, by Steven K. Green, the Frank H. Paulus Professor of Law and director of the Center for Religion, Law and Democracy at Willamette University, has just been published by Oxford University Press.  Here's the book description:

Few constitutional issues have been as contentious in modern times as those concerning school prayer and the public funding of religious schools. But as Steven K. Green reveals in The Bible, the School, and the Constitution, this debate actually reached its apogee just after the Civil War, between 1863 and 1876. Green shows that controversy over Bible reading in public schools, commonly called "the School Question," captured national attention to an unprecedented degree.

Public education during the nineteenth century faced many competing pressures, including a widespread belief that schooling required a moral if not religious basis, a belief among many Protestants that Catholic immigration presented a threat to Protestant culture and to republican values, the need to accommodate increasing religious pluralism in the schools, and evolving understandings of constitutional principles. The School Question provided Americans with the opportunity to address and articulate these pressures, and to engage in a grand-and sometimes not so grand-public debate over the meaning of separation of church and state. Green demonstrates that the modern Supreme Court's decisions on school funding and Bible reading did not create new legal doctrines or abolish dominant practices, but built on legal concepts and educational trends that had been developing since the early nineteenth century. He also shows that while public reaction to a growing Catholic presence was a leading factor in this development, it was but one element in the rise of the legal doctrines the high court would embrace in the mid-twentieth century.

Rarely in the nation's history have people from such various walks of life-Protestants and Catholics, skeptics and theocrats, nativists and immigrants, educators and politicians-been able to participate in a national discussion over the meaning of a constitutional principle. The debates of this period laid the foundation for constitutional arguments that still rage today.

And the endorsements:

 "This is a long overdue history of the origins of secular public education. Green's carefully researched discussion of the relationship between separation of church and state and public education is a powerful answer to scholars and jurists who have made ideologically-based and historically shaky arguments in favor of state supported religious exercise in the public schools. Green's work reminds us of the importance of Jefferson's notion of a 'wall of separation' between the state and religion."
---Paul Finkelman, President William McKinley Professor of Law and Public Policy, Albany Law School

"Steven K. Green has rapidly emerged as the leading historian of nineteenth-century church-state relations in America. Here he shows, in bold and brilliant colors, how the soaring debates over religion and education in the aftermath of the Civil War still shape our law and culture today, for better and worse. Deeply researched, smoothly written, and highly original, this book is a must-read for anyone who values religious liberty."
---John Witte, Jr., Director of the Center for the Study of Law and Religion, Emory University

"The Bible, the School, and the Constitution is an essential reinterpretation of the 'School Question' and its implications for church-state jurisprudence in American history. Repudiating recent accounts that attribute the emergence of 'secular' norms to anti-Catholic animus, Steven K. Green identifies a far more diverse set of motivations that converged to restrict religious practices in public schools along with public funding for religiously affiliated schools. In the process, Green implicitly defends these norms as constitutionally sound solutions for a diverse society."
--Tisa Wenger, author of We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom

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Bowers and Carpenter on The Story of Lyng v. Northwest Indian Cemetery Protective Association

Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association has just been posted on SSRN by Amy Bowers and Kristen A. Carpenter, University of Colorado Law School.  It appears in INDIAN LAW STORIES, Carole Goldberg, Kevin K. Washburn, Philip P. Frickey, eds., Foundation Press, 2011.  Here's the abstract:

In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.

This article offers a tribally-centered version of Lyng, one that is rarely told, at least outside of tribal communities. Based on interviews with tribal members who participated in the case, as well as interdisciplinary research into the anthropology and religion literature, this is a story of cultural revival fueled by the Indian way of life. It is a story of a community forced to defend itself against the assimilationist agenda of the federal government — and developing a contemporary political identity in the process. It is a story of the inextricable relationship between Indian people and lands, in which the Tribes’ attachment to their sacred sites ultimately triumphed over the Supreme Court’s narrow application of religion and property laws. In the final analysis, we argue, the Indian story of religious and cultural persistence has prevailed over Lyng’s ostensible narrative of conquest. Today, as Lyng’s doctrinal legacy threatens to undermine advances made under the Religious Freedom Restoration Act of 1993, the broader story told here is potentially revealing for everyone concerned with religious liberties in the United States.

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