Is the Constitution Suited to Today's Church/State Issues?
Continued from previous page
In both of these books, you are, on the one hand observing the legal process as a scholar, and on the other hand participating in it as an expert witness. How do you think scholars of religion can help guide legal interpretation?
I think a scholar can act as a teaching expert in court, someone able to inform the judge in a way that allows the judge to make a good decision. However, it is very difficult to execute well, and I do not claim to have done so myself.
It's very easy, as a religion scholar, to be naive about the extent to which your categories and your ways of nuancing the material over which you have a command don't necessarily fit the schematization -- and necessary schematization -- of a particular legal context.
Has there been tension between you and the lawyers who hire you as you try to explain your position, which may differ from what they want you to say on the stand?
There's always that period of negotiation. What the lawyers naturally want you to do is to supply a piece of evidence that will persuade the court so their clients will win. But I have to resist this a bit.
I'm not in charge of what the First Amendment means; that's the judge's job. I can explain how people in religious studies think about and describe what these people are doing.
When I am called by lawyers, I regard it as an extension of my work as a teacher. I haven't done anything that I would call political, though I imagine that the parties on the opposite sides of the cases would say it was. My own intention, actually, is to depoliticize these issues.
I don't think that the culture-wars version of the First Amendment has been very helpful for anybody. It produces caricatures of religion and caricatures of people that are not very helpful.
Both books take very ordinary American examples as indicative of both a national and global predicament. Why are these American cases so instructive? And have you explored international alternatives that we might take as instructive as well?
Well, the U.S. is viewed as exemplary in these issues around the world, so the cases do translate surprisingly well. The effort to enforce laws that protect religious freedom is a global project now, to some extent.
That said, the perception in the U.S. of U.S. exceptionalism on these issues is making the argument stale and circular. There are actually tremendously interesting things going on -- for example, in the E.U. -- in terms of the legal management of religious diversity. But most Americans are not aware of them, and I find that very frustrating.
Things that could help us change our system?
Things, at least, that can help us understand better how our system grew out of a specific set of historical circumstances that we might have outgrown in some respects.
When people talk about the First Amendment religion clauses, they talk about the founding moment, and then they skip to the present, or they skip to 1940, leaving out tremendous changes in law and government in the U.S., not to mention a complete transformation of American religion. That history is missing from most people's account of the religion clauses, as if it's self-evident that there's this thing called religion and nothing about it has changed since 1787.
In Prison Religion, you reveal how the American, secular prison system has largely given up on rehabilitation. Yet, at the end of the trial, the judge rules that the religious rehabilitation program has to close. Do you think we can afford to turn down those who offer to help in ways that the government won't?