Space and Church–State Controversies in America
Abstract and Keywords
Issues of church and state are an important element of American religious history and politics. Church–state issues frequently concern the extent of government regulation over religious groups and individuals, and they address fundamental issues, from the constitutional limits on government regulation of religiously inspired conduct to state and local government zoning of religious congregations and property owned and used by religious groups.
Space is often a part of church–state issues. Beginning with early debates over religious liberty in the Puritan colonies in the 1600s, and again during the American Revolution and framing of the U.S. Constitution between 1775 and 1790, spatial conceptions of the proper role between church and state, and between government and religion, are prominent. Two fundamental thinkers on American religious liberty, the Puritan minister Roger Williams and the constitutional framer James Madison, illustrate this dimension of church–state relations.
Disputes over space, church, and state are often resolved by the court system through litigation, or through the political process. Such disputes often stem from government policies and regulations that affect how a congregation or religious group uses its own property. For instance, zoning and other municipal ordinances may affect and burden how a religious group uses its property and even interfere with a group’s religious mission. Religious beliefs may compel a congregation to use its property to engage in charitable works, yet it may be prohibited from doing so due to government regulations on how its property can be used. Or when a congregation seeks to expand its facilities to attract more members, or even build a new worship center elsewhere, it may encounter government policies that regulate its ability to do so.
Other disputes over space arise when government regulation of public property affects a religious group’s use of it. For example, some religious groups stake a sacred claim to land or other space owned by the government. However, government regulations concerning how the land is used might interfere with a group’s ability to act upon its sacred beliefs. In some cases, religious groups may seek to use public property for religious purposes and activities, such as the display of a religious symbol or for proselytizing to the public, and government policies may prevent that in order to avoid violating the Constitution’s ban on government establishment of religion in the First Amendment.
A final view of space and church–state issues is more conceptual and less grounded in tangible space, land, and property. Some religious groups seek a more abstract, intangible space between them and government regulation. Groups such as the Old Order Amish that seek to separate from the world will erect a buffer space between themselves and government regulation, so as to preserve the purity, and sanctity, of their way of life that is inextricably linked to their specific religious beliefs.
Keywords: space and religious liberty, space and First Amendment, space and Constitution, religious space and Supreme Court, space and religious pluralism, Religious Freedom Restoration Act, Religious Land Use and Institutionalized Person Act, eruv
Space and Church–State Issues
Scholars of American religious studies have recently focused on the geographical, territorial, and other spatial dimensions that affect and define how religious groups interact in a myriad of political, social, and religious ways. Religious pluralism anticipates that groups will often be in relationships with one another and that the interests of one group may or may not coincide with the interests of other groups. As Bret Carroll has noted, pluralism denotes an “ongoing and complex dynamic involving encounter, engagement, and exchange” through which a wide diversity of religious individuals and groups interact with one another.1 When that interaction involves public goods and resources, such as access to government funding or to public properties, or participation in a regulatory environment, political disputes often develop over the relative power of one or more groups versus others and the ability or inability of groups to extract resources and other concessions from political institutions. Much of that interaction among groups and governments will concern various aspects of space, both geographical and real property space, and more intangible space that is not specifically defined by place. Issues of church and state and government power over religion often affect how religion and space interact.
Church–state issues in the United States usually concern the range of religious freedoms and liberties protected by the First Amendment in the U.S. Constitution. Broadly construed, the First Amendment’s Free Exercise Clause protects freedom of religious belief, conscience, and conduct, and the amendment’s Establishment Clause prohibits a certain level of government support for religion. To be sure, not all church–state controversies concern constitutional principles, and many conflicts between religion and government concern more mundane things like municipal zoning ordinances or state health codes, and even state and federal grants for religious groups to provide social welfare programs. While constitutional conflicts may simmer below the surface of much interaction among houses of worship, religious groups, and government, many disputes will be settled through political compromise and consensus instead of constitutional command. Many of those disagreements will also concern elements of space.
In general, church–state controversies involving space concern a few broadly defined issues. For example, a religious group’s control of its own sacred property may fall under some type of government regulation, such as local property zoning or health codes, thus presenting a geographically spatial dimension to a government’s oversight of religion. Government regulation of religious space implicates broad church–state issues, such as religious liberty, the liberty to engage in religiously motivated conduct, or even unconstitutional government aid to religion. Or different religious groups may contend for the same geographical space, and seek government intervention to resolve the conflict. Some religious groups may perceive large geographical areas, often controlled by government, as vital to their religious worldview and theological foundations, and may seek government regulation to protect those spaces, or may challenge government usage of those spaces. As Roger Stump has pointed out, religious groups may seek to sanctify public spaces owned by the government by injecting their sacred messages into the public sphere through the display of religious items, such as the Ten Commandments, or through religious ceremonies, such as public prayer.2 And some groups may seek an intangible spatial buffer zone between themselves and their beliefs, and religious practices and the government.
Early American Debates over Church, State, and Space: Space as Metaphor and Space as Real
A spatial dimension is evident in some of the early and formative debates over religious liberty in colonial America and in the young United States. One approach to space, church, and state stems from Roger Williams and his confrontations with other Puritans in the Massachusetts Bay Colony in the 1640s. Another comes from the writings of James Madison, who sought in the 1780s and 1790s to craft a scientific approach to issues of space, church, and state.
Williams was a Puritan minister and early Baptist in colonial America who was ultimately expelled (banished) from the Massachusetts Bay Colony for arguing against the Puritans’ form of government that, while rudimentarily democratic, was also closely linked to its theology. He argued that the church, broadly construed, must maintain its purity and sacredness through a clear separation from government. He viewed the close connections between the Puritan church and political institutions as harmful to the church itself, even though such policies as taxation subsidized the church, and overlapping membership in churches and Puritan political institutions were meant to protect the church’s role in Puritan society.3 To illustrate his point, Williams employed a spatial metaphor derived from the Old Testament book of Isaiah, and argued that the pristine garden of the church must be protected from the ever-encroaching wilderness of the government. In his pamphlet The Bloody Tenet of Persecution (1644), and in his response, written in 1652, to a letter by Puritan Minister John Cotton, Williams argued that God’s people must maintain a “hedge or wall of separation between the garden of the church and the wilderness of the world” in order to protect the purity and sanctity of the church itself.4 To open the hedge between garden and wilderness by allowing government support for the church would ultimately lead to the church’s destruction.
Williams’s use of a biblical analogy reflects a spatial understanding of the relationship between religion and the state. While his view did not stem from an Enlightenment understanding of the role of the government in relation to groups in society, it nevertheless prompted subsequent thinkers to consider spatial dimensions embedded in the relationship between government and religion. A famous example comes from Thomas Jefferson, who as president of the United States wrote a short letter to the Danbury Baptist Association in 1802 in which he thanked them for their support for the Constitution and the First Amendment, which built a “wall of separation between church and state.”5 It is unclear whether Jefferson had studied Roger Williams, but it is certain that the “wall of separation” metaphor entered constitutional lexicon in the late 1800s, and by the mid-20th century had been used by several Supreme Court justices in their interpretation of the Establishment Clause and church–state relations under the U.S. Constitution.6 Jefferson is considered one of the more significant thinkers on church–state issues in American political thought. However, it was James Madison who put forth a very powerful argument for understanding church and state through the lens of space.
Madison and Jefferson were the primary architects of the postrevolution policies in Virginia that disestablished the Anglican Church from the state political system and put in place state constitutional protections for religious belief and conduct. Their thought affected other debates over religious freedom that swept through the young United States in the 1770s and 1780s and greatly influenced the debate on religious liberty in the First Amendment to the Constitution in 1789 and thereafter.7 Out of Madison’s thinking emerged a spatial approach to church and state through which religious liberty was best protected by the large geographical space that the new American republic occupied. Unlike Williams, who perceived a spatial dimension to religious liberty in order to protect the sanctity of the church from government and worldly corruption, Madison considered that the immense geographical space in the young United States would keep religion from intruding into government policymaking, and prevent religious majorities from using political power to oppress religious minorities.
Madison’s thought on church–state issues is addressed in numerous essays and letters penned throughout his long life. The most prominent writings are his Memorial and Remonstrance on Religious Assessments, written in 1785 prior to the U.S. Constitution, and then Federalist Paper No. 10, written in 1788 to encourage ratification of the new Constitution. His Memorial was written to justify maintaining the separation of church and state in Virginia, and argued for stringent protections for religious conscience and freedom of belief.8 In Federalist No. 10, Madison linked his understanding of religious liberty from the Memorial with a scientific explanation of the ways in which space can serve to limit government power and dampen conflict among religious groups—conflict that historically led to the oppression of minority religious beliefs by the majority in other countries.
Madison’s scientific approach to constitutional government was grounded in his understanding of the regularities of human and group behavior, and led him to articulate a spatial solution to group (and religious) conflict.9 His arguments in Federalist No. 10 responded directly to Anti-Federalist opponents of the new Constitution, who argued that republican government was only successful over a small territory. In contrast, Madison maintained that a republican form of government that extended over a large territory would be the best guarantor of the people’s liberties. He borrowed generously from the thought of David Hume and Adam Smith, and like them perceived society as comprised of various factions or self-interested groups.10 Although factions based on unequal differences in property ownership were considered the most destabilizing to republican government, Madison also feared factions based on religion. As he noted, “ a zeal for different opinions concerning religion, concerning government, and many other points . . . have, in turn, divided mankind into parties, inflamed them with mutual animosity and rendered them much more disposed to vex and oppress each other.”11
Madison’s remedy for factions was found in the Constitution’s creations of a large republic spread over a large territory, so that no one faction or group could control the political system, or combine with other groups to form a despotic majority. As he wrote, “extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be difficult for all who feel it to discover their own strength and act in unison.”12 As regards religious groups, he wrote: “a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source.”13 Thus, Madison proposed a spatial understanding, and remedy, for religious factionalism and conflict in American society. The best way to protect religious liberty was with a large republic, or space, in which a variety of religious groups could flourish and grow.
Madison’s thought was informed by his experiences in Virginia politics in the 1770s and 1780s, during which Virginia had changed from a society in which one church, the Anglican Church, was supported by the government and dominated religious life to a religiously diverse society in which many different, smaller Protestant sects, Catholics, and others flourished and supported policies that protected religious liberty.14 His thought was also influenced by debates over government policy in the Congress under the Articles of Confederation, and the attempt of a congressional committee to set aside national property in the Northwest Ordinance for religious usages. The Ordinance was a comprehensive plan for the development of the Northwest Territory, which lay between the Mississippi and Ohio Rivers and the Great Lakes, and the congressional committee charged with drafting the policy recommended that a central section of every township plotted in the territory be set aside for “supporting the Religion of the Majority of inhabitants.” Thus, Congress was encouraged to grant federal land outright to churches, or at least preserve government property as a defined space for religious groups to organize congregations.
Even though the committee’s recommendation failed to garner a majority of state support in the Congress and was not approved, Madison was still alarmed that the idea had even been discussed in the committee, as he made clear in a letter to James Monroe in 1785. Madison remarked that “how a regulation, so unjust in itself, so foreign to the Authority of Congs. so hurtful to the sale of the public land, and smelling so strongly of an antiquated Bigotry, could have received the countenance of a Commtee is truly a matter of astonishment.”15 Madison also pointed out to Monroe that the proposed policy caused a political backlash in Virginia. Representatives who supported the bill were voted out of office, and some denominations, such as the Presbyterians, rescinded their support for the policy out of fear that the government might seek to regulate churches even more.
The Northwest Ordinance debate took place three years prior to Federalist No. 10, but Madison’s response illustrates his understanding of space concerning church and state. His observations to Monroe about Presbyterians encouraging their clergy to oppose the federal plan reflected his understanding of how a religious sect, or faction, could be engaged in political debate and affect the outcome. Perhaps more importantly, Madison’s home region in central Virginia was known for having an active Anglican parish alongside growing and politically engaged Protestant sects like Presbyterians, Baptists, and Methodists.16 Perhaps his own local interactions with religious diversity, such as it was in central Virginia, confirmed his views about creating enough space to allow a wide range of religious groups to flourish. Space was integral to religious freedom for Madison, and his observations on the debate over the Northwest Ordinance, viewed through the lens of religious pluralism in Virginia, solidified his theory of space in Federalist No. 10 in which a large republic allowed many factions and religious sects to coexist, each with the ability to check the other. Thus, what might be termed Madison’s “factional space” lies at the core of American thinking on church–state relations.
Space, Church, and State in the Modern Era
Government Regulation of Sacred Space
The spatial concerns highlighted by Roger Williams and James Madison in the 17th and 18th centuries inform our understanding of space, church, and state in the modern era. Their thought anticipates that spatial considerations will be prominent in debates over the proper role for government in regulating religion. Religious groups, churches, synagogues, mosques, and any number of other religious institutions typically maintain sacred spaces that reflect their own beliefs and practices. Maintaining those sacred spaces is an ongoing endeavor, involving decisions affecting, for instance, a space’s sacred meaning and usage.17 A group’s use of its own sacred space may often require it to interact with local, state, and even federal government agencies that also have a government and public-interest claim on regulating that space through zoning laws, health codes, or similar rules concerning public health, welfare, and safety.
The National Congregations Survey, a regular survey of religious congregations nationally, has reported that about 20 percent of religious groups will seek some kind of permit or license from a government agency in a given year. Permit requests concern a wide range of matters associated with sacred spaces, from running day-care centers or homeless shelters to planning permission to expand a worship space or conduct bingo games.18 In some survey years, congregations requesting government permission have accounted for approximately one-third of individuals affiliated with a religious body in the United States.19
With so many sacred spaces seeking a policy dispensation from a government agency, church–state conflicts would predictably occur mainly at the local and state level as policymakers and regulators decide a wide range of permitting issues. According to the survey, over 90 percent of congregations received the permit or license requested, with only approximately 2 percent reporting a denial of the same. Thus, church–state conflicts over the use of sacred space are seemingly rare, and local and state governments have facilitated the use of space much more often than they have blocked it.20 This is not to say that permit or license requests are resolved without conflict between religious groups and governments; it is likely, though, that as disputes occur, they are usually resolved by the political process through discussion and negotiation between policymakers and churches.
Some requests to use or change sacred spaces, however, can lead to church–state conflicts that are resolved through litigation. In these instances, courts will most likely be faced with the interpretation and application of constitutional principles from the First Amendment religious liberty clauses, interpretation of state or federal statutes, or interpretations of both areas of law. One case in point concerned a Catholic parish in Boerne, Texas, that sought planning permission to enlarge its worship center to accommodate a rapidly growing congregation. The Boerne Historic Landmark Committee denied the building permit because modifications to the church would affect the historic preservation of the Boerne downtown area. The denial of the permit led to the landmark U.S. Supreme Court case Boerne v. Flores decided in 1996. At issue in Boerne was the constitutionality of a federal law passed in 1993, the Religious Freedom Restoration Act, or RFRA. The federal statute, which was passed in response to an earlier Supreme Court decision that made it easier for local and state governments to regulate religious groups, was overwhelmingly supported by Democrats and Republicans in Congress. It was also supported by a wide range of religious interest groups representing many different faiths. RFRA required any government regulation that affected a religious group’s beliefs or conduct to be justified by a “compelling interest” on the part of the government, a very high burden of proof and justification for any government to meet. Under the terms of the statute, it would be difficult for the Boerne government to justify the denial of a building permit.
The Supreme Court ruled RFRA unconstitutional as it applied to states and municipalities, and its reasoning was based more on federalism doctrine than on church–state jurisprudence.21 After the Court’s decision, it became much easier to regulate sacred spaces at the local and state level, and in response, many states passed “mini-RFRA” laws that constrained local and state regulation of sacred spaces within those states. Thus, a “haphazard approach” to how sacred space is regulated by subfederal governments has developed, leading to uneven protections for sacred spaces and divergent policy trends from state to state.22 Yet the data collected by the National Congregations Survey on congregations’ requests for government permits is more recent than the Boerne case and passage of state-level RFRA laws, which suggests that different state and local regulations on sacred spaces have not necessarily diminished the ability of religious groups to use them as they see fit.
Even though the Supreme Court’s Boerne decision granted some leeway to local and state governments to regulate sacred spaces, another Court decision also makes clear that local governments cannot use zoning or other regulatory policies to keep a church from locating in its jurisdiction. The case Church of the Lukumi Babalu Aye v. Hialeah (1993) concerned the Florida city’s zoning ordinances that regulated the slaughtering of animals within city limits. The laws were passed to stop a Santeria church from moving within the city limits, because city officials and other citizens were alarmed at the Santerian form of worship predicated around animal sacrifice.23 The Supreme Court declared that the ordinances were unconstitutional because they clearly targeted the kind of animal sacrifices practiced by Santerians, even though the laws did not specifically mention Santeria or other faiths. The Court also noted that the public record of debates on the ordinances showed that policymakers sought to target Santerian forms of worship and halt their plans for a worship center in the city.
The impact of the Court’s decision is that in general, governments cannot use regulatory policies to deny a group its own sacred space, and that the animus that policymakers might have against a religious group is a clear indication of an unconstitutional denial of sacred space to the group in question. The Hialeah case is also a good example of the ways in which hegemonic religious groups in a community—in this case, evangelical Protestants and Catholics—use political authority to suppress a minority religious group by denying it sacred space in which to worship.24 Normally, courts do not pay attention to the specific group power dynamics of such disputes, but it is clear that some disputes over sacred spaces are prompted by fault lines created by tension between majority and minority religious groups that exist within the same political community.
In 2000, Congress returned to the issue of federal regulation of local, state, and federal agencies that have zoning and other regulatory authority over religious congregations. Since RFRA was declared unconstitutional as it applied to local and state governments, Congress rewrote a much narrower version of the law, applicable to local and state governments, with the hope that it would pass constitutional muster. That law, the Religious Land Use and Institutionalized Persons Act, or RLUIPA, was passed unanimously by both houses of Congress and signed by President Bill Clinton.
The law was based on Congress’s conclusion that “zoning authorities were frequently placing excessive or unreasonable burdens on the ability of congregations and individuals to exercise their faith [and] that religious institutions often faced both subtle and overt discrimination in zoning, particularly minority, newer, smaller, or unfamiliar religious groups and denominations.”25 Congress also resolved that religious institutions had faced more discrimination in zoning and permitting requests than secular institutions. The federal law allowed individuals to sue governments in federal court over the denial of permits, and also let the Attorney General of the United States investigate denials of permits.
The U.S, Department of Justice subsequently cataloged a decade’s worth of investigations against local and state governments, and concluded that by 2010, RLUIPA “has had a dramatic impact . . . on protecting the religious freedom of and preventing religious discrimination against individuals and institutions seeking to exercise their religions through construction, expansion, and use of property.” The law has also been used to protect “a wide range of religious groups, including Christians, Jews, Muslims, Sikhs, and many others,” although the Justice Department’s statistics indicate that over half of its investigations have concerned Christian groups.26 Unlike RFRA, the constitutionality of the land use provisions of RLUIPA has not been litigated, and thus it remains as a significant federal oversight of local and state governments and their application of zoning and other regulations to religious institutions.
The Religious Land Use and Institutionalized Persons Act has given religious institutions ample leverage against government agencies that regulate them. It is the case that churches and religious groups generally have their requests granted for government permits or licenses, but that some faiths may have more difficulty than others. Muslims in the United States sometimes encounter local resistance to their requests to build new mosques or expand existing ones. Local opposition to mosques seems to have increased since the terrorist attacks of September 11, 2001, and although there is no systematic data on the denial of building permits to Muslim congregations, anecdotal evidence suggests that when Muslim groups encounter resistance, it is often due less to local government opposition and more to community opposition that might be reflective of a hegemonic religious worldview within a specific community and in opposition to Muslim beliefs and practices.27
Internal Group Conflict over Sacred Space
Government attempts to regulate sacred spaces raise church–state issues from the standpoint of the power of the government over a specific space, such as a building or piece of property, or power over a specific religious group. Other church–state conflicts can arise when the group that controls the space splinters into two or more groups each with a contending claim on control of the space. Courts and policymakers are historically reluctant to get involved in such conflicts, since having a secular judge nullify decisions made by ecclesiastical bodies interpreting and applying their own religious tenets would, in most instances, violate the free exercise of religion.
A seminal Supreme Court case decided in 1872 established the basic parameters of church–state doctrine on this issue. In Watson v. Jones, the issue for the Court was over which contending party controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The national Presbyterian authorities in 1861 had renounced slavery and supported the Union during the Civil War, leading to doctrinal splits among local congregations between those who supported slavery and those who opposed it. Walnut Street Church was affected by such a split when the Presbytery of Louisville maintained its pro-slavery stance and sought to oust factions loyal to the national Presbyterian Church.28 Kentucky state courts ruled that pro-slavery factions controlled church property and leadership positions, thus prompting anti-slavery factions loyal to the national Presbyterian Church to sue in federal court. Lower federal courts ruled in favor of the anti-slavery group and the Supreme Court agreed, ruling that civil courts should not inquire into “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,” since to do so would allow courts to decide ecclesiastical questions.29 The Watson case established that when sacred space is in conflict between two contending religious groups, civil courts will generally remain detached for fear of interfering with church governance.
The Supreme Court modified the Watson decision in 1979 in Jones v. Wolfe and allowed courts to address property conflicts concerning churches and sacred space as long as judges applied only neutral principles of property law and did not interpret ecclesiastical doctrine.30 However, while some lower state courts have adopted the Supreme Court’s modifications, others have not. Thus, differences in state law have led to some unpredictability in settling disputes over sacred space, most notably and recently in the American Episcopal Church.
The Episcopal Church, USA has been embroiled in property litigation since the 1980s, as splinter groups have sought to break away from the national church due to their disagreement with the national church’s policy of ordaining women priests and, most recently, gay bishops.31 National church doctrine mandates that the national governing body controls church property, and thus schismatic groups have not been able to maintain control over local churches and dioceses that defy national church policy. However, cases are litigated in state courts, and the law varies from state to state, just as with zoning laws and the presence or absence of state-level Religious Freedom Restoration Acts. Although the general principle established by the U.S. Supreme Court is that lower courts cannot inquire into religious doctrine and should therefore defer to church governance and hierarchy in disputes on the use of sacred space, that principle has been implemented by state courts in different ways. Therefore, although churches and religious groups are in control of their own sacred spaces according to their governing church doctrines, internal conflicts over that space that end up in litigation will be settled under state laws that are not uniform throughout the country.32
Public Properties as Sacred Spaces
A different category of sacred space that has also raised church–state disputes concerns religious groups that consider swaths of land, often owned by federal and state governments, as having sacred properties. In many cases, the land forms a vital part of the group’s belief system. For instance, Native American religions often attach a deep religious meaning and sacredness to geographical areas, from small sites, such as Devil’s Tower National Monument in Wyoming, to larger, more expansive territories, such as the thousands of acres that comprise the “High County” in Six Rivers National Forest in northern California. As Mark Silk and Andrew Walsh have noted, such publicly owned spaces with spiritual sacredness for Native Americans tend to be located in the American West, though not exclusively so.33
Church–state issues are implicated when government regulation of public property conflicts with a religious group’s usage of the space for sacred purposes. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court ruled that the federal government’s plan to build a logging road through the “High Country” in Six Rivers Forest could proceed, even though the road would interfere with the ability of several Indian tribes to use the sacred space for their worship. The majority of the Court perceived the dispute in terms of the federal government’s power to use its property, balanced with the needs of religious groups to exercise their faith, and in this case prioritized government control of public land over the religious claims of the tribes.34 In other cases concerning similar tribal claims over public lands, lower federal courts have generally upheld government policy, or government agencies and tribes have reached policy agreements on how sacred lands are regulated.35
Disputes similar to Lyng occur when religious groups seek to make a large public space sacred in order to more fully exercise their beliefs. Since such space is owned and regulated by government, church–state issues are prominent. One example concerns the creation of eruvin by Orthodox Jews. An eruv is a “ritual space used by Orthodox Jews during observance of the Sabbath,” and allows Jews to engage in certain activities that are allowed in private religious spaces on the Sabbath, but not allowed in public areas.36 In order to create an eruv, Jews must physically demarcate the public area in question with fixed boundaries, often strings attached to existing utility poles, and must also have permission from landowners to use the space. This last requirement is often dealt with symbolically through agreements between rabbis and civil officials.37 However, to delineate the geographical space for the eruv means turning public space into sacred space for one specific religious faith, and also entails the usage by a religious group of public conveyances, such as utility poles or similar structures, upon which can be affixed the borders of the eruv itself.
There is very little litigation concerning eruvin, and the Supreme Court has not addressed whether the use of such public property as utility poles, or other public rights of way, to construct a sacred space for one religious group violates the Establishment Clause. Likewise, the Court has not considered whether the free exercise rights of Orthodox Jews are violated when a city council denies a planning permit to erect an eruv on a municipality’s utility poles. Both of those issues have been litigated in lower courts.38
One scholar has noted the existence of at least 130 eruvin constructed by Orthodox Jews in American communities.39 With many eruvin in existence in local communities, the relative lack of litigation concerning them suggests that spatial disputes about the use of public facilities to erect a private religious space for Orthodox Jews are most commonly resolved in local political processes. And even though church–state issues are bound up with debates over eruvin, those constitutional concerns are addressed at the most local level by policymakers instead of by judges.40
Sacred Spaces in the Public Square
Church–state issues arise when religious groups seek to control public space and appropriate it for their own ends. As Roger Stump has noted, attempts by groups to use secular space allow religious adherents to “exert various forms of influence beyond the boundaries of their own traditions,” and as groups extend their influence to public and secular spaces they “create the potential for conflict.”41 The public space itself is not intertwined with the group’s religious beliefs; instead, the space is viewed as an appropriate place to evangelize, proselytize, exercise, or conduct a basic belief, or even just advertise an upcoming religious event such as a church service. The secular spaces at issue are on a much smaller scale than eruvin or sacred territories instrumental to Native American religions. Small public spaces appropriated by groups will usually have no intrinsic religious purpose or sacred meaning, unlike sacred Indian lands that cannot be delinked from Native American religious beliefs. Groups often seek to use public, secular spaces to express a religious message or engage in some form of religious conduct because the spaces are open and easily accessible, allowing them to reach many members of the public.
Disputes about where, how, and when religious groups use public and secular spaces for their own purposes are far more numerous than other disputes over space. Some occur when a group seeks to incorporate its beliefs, for example, by displaying a religious object in a public park or government building. Other disputes concern attempts to exclude religious practices from a secular space, such as when citizens and nonreligious groups demand the removal of any religious items from public places, citing violations of the Establishment Clause or some notion of the separation of church and state. Yet other conflicts develop over religious beliefs and practices deeply embedded and routinized in public spaces or practice, and which are frequently reflective of the local religious hegemony.42 Embedded religious beliefs and practices include the display of religious objects such as Christmas trees or creches, and the opening of government meetings with a religious invocation.
Most individuals or religious groups that want to use public space for religious reasons are Christian. For instance, The Gideons International group has used public areas to distribute copies of the New Testament, and another group, the Good News Club, has formed student religious clubs in public schools. Many groups have sought to display the Ten Commandments (Decalogue) in government buildings or parks. Use of public areas is not limited to Christian groups either, as other faiths have used public spaces for sacred purposes, too. The Chabad-Lubavitch movement has displayed such Jewish symbols such as menorahs publicly, and members of the International Society for Krishna Consciousness (Krishnas) have sought to use public spaces for their form of ambulatory proselytizing, called sankirtan.43
Many disputes over public space are local, and local governments will frequently grant a group’s request to place a religious message in public. When litigation arises out of such disputes, courts will generally view religious messages as a form of free speech. As the Supreme Court noted in a case concerning the display of an unattended cross in a city plaza by a private group, “private religious speech . . . is as fully protected under the Free Speech Clause as secular private expression.”44 Courts must still determine if a public space is open for free speech activities, and if so, then it is likely that the group will be granted access to the space for its religious message or activities. Federal courts have defined the constitutional principles under which religious messages are allowed into public spaces, and Congress has also passed federal legislation regulating religious speech in public schools. Under the Equal Access Act passed in 1984 and upheld by the Supreme Court, public schools that receive federal financial aid cannot refuse access to student groups on the basis of religious, political, or philosophical speech. A series of rules by the federal Department of Education under Republican and Democratic presidents have implemented the Equal Access Act provisions.45
As Stump has noted, “hegemonic groups have traditionally taken for granted their control of public space” by embedding their messages and practices in a wide range of public settings,46 not only by displaying religious items such as the Ten Commandments but also by invocation of prayers at the start of government meetings. In response, secular groups, such as the Freedom from Religion Foundation or the American Civil Liberties Union, may seek to expel the religious or message from the public space because it violates the Establishment Clause of the First Amendment. Thus, it is the case that when religious groups are successful in including religious messages in a public space, they may prompt backlashes from secular groups that seek the removal of such messages, including those that have become so deeply embedded in public spaces that their religiosity or sacredness has, arguably, been lost over time.
Finally, some religious groups may seek to remove a religious message or display because the group finds it offensive. One example concerns the U.S. Supreme Court building which, when built in the 1930s, included a depiction of Muhammad on the frieze of historic lawmakers that circles the courtroom. In 1997, a coalition of Muslim groups asked the Court to remove the image of Muhammad because it offended Islam’s discouragement of the public display of images of the Prophet. Its request was refused by the Chief Justice, William Rehnquist, one of whose functions is to oversee the Court’s infrastructure and make administrative decisions concerning changes to the Supreme Court building and courtroom. The Muslim group did not file a lawsuit seeking removal of the display.47
Other contemporary examples of groups seeking to drive religious displays or practices out of a specific space have shown the Supreme Court to be somewhat supportive of space that has traditionally contained religious elements. In a case concerning the Ten Commandments, Van Orden v. Perry (2005), the Court addressed whether the Establishment Clause prohibited the display of the Decalogue on the public grounds surrounding the Texas state capitol building. The Court ruled that since the display was passive and surrounded by many secular items, it did not send a message of government endorsement of religion. Yet in a companion case also decided in 2005, McCreary Co. v. American Civil Liberties Union, the Court conversely ruled that a Ten Commandments display in a Kentucky county courthouse violated the Establishment Clause because the county government intended it to be an endorsement of religion and the prominent location of the display was not passive at all.48 In both cases, both the majority and dissenting justices considered the type of space that contained the Ten Commandments, the location of the displays within the spaces, and the governments’ motivations in allowing the display. That the Court reached different conclusions in the appeals, and interpreted the locations and messages of the displays in different ways, shows the difficulty (and unpredictability) in resolving spatial disputes through litigation.
Stump has suggested that conflicts over religious messages in public, secular spaces are prompted by hegemonic religions, often fundamentalist or conservative evangelical, that seek to strengthen or just maintain their influence. Additionally, a growing commitment to pluralism and civic secularism likewise prompts disputes about the legality and appropriateness of religious messages in secular areas.49 It may be that courts are not the institutions best suited for resolving church–state issues that arise over religious messages in secular spaces. Supreme Court policymaking has led to some inconsistencies in the law, to be sure, which makes it difficult for other government institutions to craft predictable, manageable policies. However, it seems likely that most church–state issues over secular spaces are resolved not through litigation but through the appropriate policy process. In general, those issues will not be reported, except at the most local or state level.50
Global Politics and Sacred Space
Courts have decided conflicts concerning sacred space, global politics, and church–state issues, too. Although rare, such disputes require courts to balance the uses of sacred space, religious liberty, and the foreign policy concerns of the United States. One case decided in 1952, Kedroff v. St. Nicholas Cathedral, concerned which of two contending groups controlled the Russian Orthodox cathedral in New York City. After the Russian Revolution and the creation of the Soviet Union in the early 1920s, the Soviet government exerted control over all Russian Orthodox properties and the church’s leadership. In response, a group in the United States refused to recognize the Soviet Union’s dominance and formed a splinter group to maintain its control over the cathedral and all Russian Orthodox properties in New York City. The New York State legislature passed a law that declared the splinter group to have the legitimate claim over all Orthodox church property in the state. The Supreme Court invalidated the law and affirmed that only Orthodox ecclesiastical tribunals can determine the appropriate hierarchical authority over the cathedral, and the appropriate church institution had designated the Patriarch of Moscow (appointed by the Soviet government) as the overseer of the church property. Not only did the Kedroff decision reinforce the constitutional principle that federal and state courts in general cannot inquire into religious doctrine in order to resolve conflicts over the control of sacred spaces; its decision also prohibited state legislatures from doing the same thing.51
Space as a Buffer Zone and a Place
One other set of church–state issues involving space is prompted by religious minorities that seek a high degree of separation from the worldly influences of government and society. Such groups form insular communities centered on a religious worldview that requires separateness in order to protect and perpetuate a deeply felt, all-encompassing religious way of life. In American church–state history, one of the most prominent groups that seeks separation is the Anabaptists, including the Amish and the Mennonites, who form relatively inward-looking communities that, though law abiding, desire clear and lasting disengagement from government power.
In arguments submitted to the Supreme Court in a religious liberty case, the Mennonite Church noted that its history “is that of a church in migratory status, migrating from one place, or nation to another in search of religious . . . toleration, a defenseless people looking for a place to be.”52 As Stump has written, the search for space, “for both land and religious tolerance, became a major factor in the migration” of the Mennonites, the Old Order Amish, and other religious minorities that have worked to maintain religious communities shielded from the government and from others.53 Robert Cover has similarly noted that such groups form “communities with a total life-vision, a nomos entirely of their own,” and seek the “creation and maintenance of a common life” that provides a sphere of autonomy independent of government power.54
One facet of that community formation and maintenance is the migratory search for space and territory in which to fashion the community. A related spatial aspect of that search for territory is the ongoing efforts of groups to maintain their distance from political power and the state: an ongoing attempt to create a buffer zone or neutral space between them and the government, a neutral space that the government recognizes as vital for the group to maintain its separation from the world. This creation and maintenance of a buffer zone raises church–state issues that broadly focus on the extent to which the community’s religious beliefs and practices are exempt from government regulation. Often the creation of a buffer zone forces a group to withdraw its participation in civil institutions, such as public schools, voting, and even civil and criminal juries.
The Amish offer a good case study of attempts by a religious minority to cordon off a metaphorical buffer zone, or space, between them and local, state, and federal governments. Douglas Kraybill has written that Amish communities rely far more on religious experience than on systematic theology, and that “the gulf between church and world, imprinted in Amish consciousness by decades of persecution, guides practical decisions. The separatist impulse infuses Amish thinking.”55 Maintaining the separateness and autonomy of their communities is vital to the Amish, and to that end they have sought exemptions from “worldly” laws and regulations that impinge upon Amish community practices grounded in religious experience. Thus, the Amish have sought exemptions for their black, horse-drawn buggies from state motor vehicle laws that require certain warning signs on slow-moving vehicles; exemptions from blaze orange requirements for hunters; exemptions from and modifications to federal child labor laws so that Amish children can work more hours on farms or in Amish industries; and perhaps most controversially, exemptions for Amish children from mandatory school attendance laws.
Many Amish communities will interact with local and state governments to protect their ways of life. At the national level, several autonomous Amish communities in the late 1960s created the National Amish Steering Committee to present Amish concerns to Congress and federal agencies on a wide range of issues, such as conscientious objector status for the military draft, accommodations or exemptions from federal labor laws, social security policy, and many others.56
One famous example is the case Wisconsin v. Yoder (1971), which concerned whether Amish children could be exempted from the State of Wisconsin’s mandatory school attendance law that requires children to attend public or private school through age 16. Amish communities were willing to comply with the mandatory attendance law and send their children to school up to the eighth grade, but beyond that, the Amish did not want their children exposed to worldly influences that could ultimately threaten their way of life and the children’s salvation. Having their children at work in Amish communities and farms instead of attending school would be better protection for Amish beliefs in general.
Several Amish parents were convicted by Wisconsin for failing to send their children to school, and on appeal to the Wisconsin State Supreme Court, the attorney representing them asserted that enforcement of the school attendance law “would at once sound the death knell to the Old Order Amish way of life,” and that “the destruction of a way of life is involved” in the case.57 The state supreme court ruled in favor of the Amish, and the state of Wisconsin appealed to the U.S. Supreme Court, which upheld the lower court’s decision. The Supreme Court ruled that the free exercise of religion in the First Amendment allowed the Amish to keep their children out of school after the eighth grade. Perhaps more importantly, the majority opinion recognized that separation from the world was central to Amish religious belief. As Chief Justice Warren Burger wrote for the Court, the Amish showed “the interrelationship of belief with their mode of life [and] the vital role that belief and daily conduct play in the survival of Old Order Amish communities.”58
Thus, the dispute was not just about exempting Amish schoolchildren from a state’s mandatory attendance law; it was also about a religious minority using the legal system and the law of religious liberty to carve out a spatial buffer zone between them and government regulation, so as to protect their separateness from the world as dictated by their religion. In the Yoder case, creating the space between the Amish and the government required Amish children to withdraw from a prominent civil institution—public schools—in order to protect their separateness. Whereas non-Amish children must attend schools, Amish children do not. In this sense, the Amish, in order to protect their own religious space, are allowed to withdraw from a government-mandated space such as public and private schools that all others are required to enter.59
Review of the Literature
There is no single work that covers the main points of the interaction between space and church–state issues. To be sure, the scholarship on the topic spans many disciplines, from religious studies, history, and sociology to political science and law. A good overview of space and religion that includes discussion of church–state issues can be found in Roger Stump’s The Geography of Religion (2008).60 Philip Hamburger’s Separation of Church and State (2002) is a recent legal history of the First Amendment’s Establishment Clause, and covers some early debates over the interpretation of the establishment of religion that concern spatial issues.61
Empirical approaches to space and church–state issues can be found in several publications. Bret Carroll provides a geographical perspective on religious pluralism in the United States in “Worlds in Space” (2012).62 John Blakeman analyzes hundreds of federal court cases over religion in public spaces, and provides a comprehensive, empirical analysis of litigation trends between the 1970s and 2000. In The Bible in the Park (2004), Blakeman studies the types of religious groups and individuals that seek to use public spaces for religious purposes, and the kinds of spaces that groups seek out.63 In a subsequent article, “The Religious Geography of Religious Expression,” (2006), he grounds his study of religious speech in public spaces in the religious demographics of the communities in which spatial disputes take place.64 Two good case studies on churches, zoning, and spatial disputes are David O’Brien’s Animal Sacrifice and Religious Freedom (2004) and Jerold Waltman’s Congress, the Supreme Court, and Religious Liberty (2013).65 O’Brien’s study concerns the dispute over a Santerian church’s attempt to build a regional worship center in Hialeah, Florida. Waltman’s study focuses on the zoning dispute between a Catholic church and the town of Boerne, Texas, which used its historic preservation ordinance to keep the church from building a new worship center. Both disputes were decided by the Supreme Court.
There are also publications from government agencies and scholarly think tanks to consider. The U.S. Department of Justice has published a decennial report on the Religious Land Use and Institutionalize Person’s Act (RLUIPA) that provides empirical data on disputes concerning religious groups, local government zoning, and federal oversight under the law. The study, entitled Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act (2010) was the first in-depth study of the law’s application. A similar study was published by the Pew Forum on Religion and Public Life. It is entitled Churches in Court (2011) and investigates the participation of churches in lawsuits that include property disputes over ownership and usage of space (buildings and other types of property), as well as zoning disputes with local governments.66
Blakeman, John C. The Bible in the Park: Federal District Courts, Religious Speech, and the Public Forum. Akron, OH: University of Akron Press, 2004.Find this resource:
Blakeman, John C. “The Religious Geography of Religious Expression: Local Governments, Courts, and the First Amendment.” Journal of Church and State 48, no. 2 (2006): 399–422.Find this resource:
Carroll, Bret E. “Worlds in Space: American Religious Pluralism in Geographic Perspective.” Journal of the American Academy of Religion 80, no. 2 (2012): 304–364.Find this resource:
Chaves, Mark. Congregations in America. Cambridge, MA: Harvard University Press, 2004.Find this resource:
Chaves, Mark, and William Tsitsos. “Are Congregations Constrained by Government? Empirical Results from the National Congregations Study.” Journal of Church and State 42, no. 2 (2000): 335–344.Find this resource:
Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.Find this resource:
Horwitz, Paul. “The Religious Geography of Town of Greece v Galloway.” Supreme Court Review 2014, no. 1 (2014): 243–295.Find this resource:
Howe, Nicolas. “Thou Shalt Not Misinterpret: Landscape as Legal Performance.” Annals of the Association of American Geographers 98, no. 2 (2008): 435–460.Find this resource:
O’Brien, David M. Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah. Lawrence: University Press of Kansas, 2004.Find this resource:
Stump, Roger W. The Geography of Religion: Faith, Place, and Space. New York: Rowman and Littlefield, 2008.Find this resource:
Waltman, Jerold. Congress, the Supreme Court, and Religious Liberty: The Case of Boerne v. Flores. New York: Palgrave Macmillan, 2013.Find this resource:
(1.) Bret E. Carroll, “Worlds in Space: American Religious Pluralism in Geographic Perspective,” Journal of the American Academy of Religion 80, no. 2 (2012): 304–364; 310.
(2.) Roger W. Stump, The Geography of Religion: Faith, Place, and Space (New York: Rowman and Littlefield, 2008), 257–272.
(3.) Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 38–55; Edwin S. Gaustad, Liberty of Conscience: Roger Williams in America (Valley Forge, PA: Judson, 1999), 82–87; Edmund S. Morgan, Puritan Political Ideas (New York: Bobbs-Merrill, 1965), 203–226.
(4.) Roger Williams, “Mr. Cotton’s Letter Examined and Answered,” in The Complete Writings of Roger Wiliams, ed. Perry Miller, vol. 1 (New York: Russell and Russell, 1963), 392. See also Morgan, Puritan Political Ideas, 204–212.
(5.) Thomas Jefferson, “Letter to Mssrs. Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, a committee of the Danbury Baptist Association in the State of Connecticut,” January 1, 1802. Available online at the U.S. Library of Congress.
(6.) Hamburger, Separation of Church and State, 1–9, 463–478. See generally Daniel L. Dreisbach, “Thomas Jefferson, a Mammoth Cheese, and the ‘Wall of Separation Between Church and State,’” in Religion and the New Republic: Faith in the Founding of America, ed. James H. Hutson, 65–115 (New York: Rowman and Littlefield, 2000).
(7.) See Garrett Ward Sheldon and Daniel L. Dreisbach, eds., Religion and Political Culture in Jefferson’s Virginia (New York: Rowman and Littlefield, 2000).
(8.) Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison (Hanover, NH: University Press of New England, 1973), 5–13.
(9.) See generally Douglass Adair, “That Politics May Be Reduced to a Science: David Hume, James Madison, and the Tenth Federalist,” in Fame and the Founding Fathers, 132–152 (Indianapolis: Liberty, 1998).
(10.) Adair, “That Politics May Be Reduced to a Science.”
(11.) James Madison, “Federalist Paper No. 10,” reprinted in Meyers, The Mind of the Founder, 90.
(12.) Madison, “Federalist Paper No. 10,” 94.
(13.) Madison, “Federalist Paper No. 10,” 95.
(14.) Lance Banning, “The Practicable Sphere of a Republic: James Madison, the Constitutional Convention, and the Emergence of Revolutionary Federalism,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Richard Beeman et al., 183 (Chapel Hill: University of North Carolina Press, 1987).
(16.) Mark A. Beliles, “The Christian Communities, Religious Revivals, and Political Culture of the Central Virginia Piedmont, 1737–1813,” in Sheldon and Dreisbach, Religion and Political Culture in Jefferson’s Virginia, 3–40.
(17.) Stump, The Geography of Religion, 27.
(18.) Mark Chaves and William Tsitsos, “Are Congregations Constrained by Government? Empirical Results from the National Congregations Study,” Journal of Church and State 42, no. 2 (2000), 335–344; 339. Mark Chaves, Congregations in America (Cambridge, MA: Harvard University Press, 2004), 44–126.
(19.) Chaves and Tsitsos, “Are Congregations Constrained by Government?” 339.
(20.) Chaves and Tsitsos, “Are Congregations Constrained by Government?” 341.
(21.) Boerne v. Flores, 521 U.S. 507 (1997); See generally Jerold Waltman, Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores (New York: Palgrave Macmillan, 2013), 93–125.
(22.) Waltman, Congress, the Supreme Court, and Religious Liberty, 126.
(23.) See David M. O’Brien, Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah (Lawrence: University Press of Kansas) 2004.
(24.) Stump, Geography of Religion, 267–268.
(25.) U.S. Department of Justice, “Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA),” December 15, 2010. See also Waltman, Congress, the Supreme Court, and Religious Liberty, 160–161.
(26.) U.S. Department of Justice, Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act, September 22, 2010, 5–6.
(27.) A PEW study indicates that between 2001 and 2012, approximately fifty requests by Muslim congregations to either build new mosques or expand existing ones ran into opposition within their local communities. However, the Pew study indicates that in general, local governments were supportive of Muslim congregations, but citizen groups often registered opposition due to concerns about traffic, noise, or threats to property values. As the study noted, these concerns are present with non-Muslim congregations, too. In a small number of cases, there was opposition to Muslims because of their religious beliefs, or perceived threats to public safety. See “Controversies Over Mosques and Islamic Centers Across the U.S.,” September 27, 2012, Pew Forum on Religion and Public Life.
(28.) Anson Phelps Stokes and Leo Pfeffer, Church and State in the United States (New York: Harper & Row, 1964), 107–108, 533.
(29.) Watson v. Jones, 80 U.S. 679, 734 (1872).
(30.) Jones v. Wolfe, 443 U.S. 595 (1979).
(31.) Ira Lupu et al., Churches in Court: The Legal Status of Religious Organizations in Civil Lawsuits (Washington, DC: Pew Forum on Religion and Public Life, 2011), 9–10.
(32.) Lupu et al., Churches in Court.
(33.) Mark Silk and Andrew Walsh, One Nation, Divisible: How Religious Differences Shape American Politics (New York: Rowman and Littlefield, 2011), 157–179.
(34.) Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). See also Amy Bowers and Kristen A. Carpenter, “Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association,” in Indian Law Stories, ed. Carole Goldberg, Kevin K. Washburn, and Philip P. Frickey, 389–533 (New York: Foundation Press, 2011); and William Johnson Everett, Religion, Federalism, and the Struggle for Public Life (Oxford: Oxford University Press, 1997), 135–148.
(35.) See R. C. Gordon-McCutchan, “The Battle for Blue Lake: A Struggle for Indian Religious Rights,” Journal of Church and State 33, no. 4 (1991): 785–796. Cases include The Navajo Nation, et al., v. U.S. Forest Service, et al., 408 F. Supp. 2d 866, (D. Arizona, 2006); Navajo Nation, et al. v. United States Forest Service, et al., 479 F.3d 1024 (9th Cir., 2007); and The Hopi Tribe v. City of Flagstaff, Arizona, 1 CA-CV 12-0370, Court of Appeals of Arizona, Division One, Department C. Unpublished decision available in Lexis: 2013 Ariz. App. Unpub. LEXIS 482. April 25, 2013.
(36.) Stump, Geography of Religion, 1–5.
(37.) Stump, Geography of Religion, 5.
(38.) See American Civil Liberties Union v. Long Branch, 670 F. Supp. 1293, Decided September 22, 1987; and Tenafly Eruv Ass’n v. Borough of Tenafly, 155 F. Supp. 2d 142, Decided August 10, 2001. In the Long Branch case, the federal district court ruled that creation of an eruv in Long Branch, New Jersey, did not violate the Establishment Clause because the city did not spend any money to erect or maintain it, even though the eruv used existing public infrastructure. In the Tenafly case, though, the federal district court ruled that the denial by the Tenafly, New Jersey, city council of a planning application for an eruv did not violate the free exercise rights of Orthodox Jews who sought permission to erect an eruv using public infrastructure.
(39.) Alexandra Lang Susman, “Strings Attached: An Analysis of the Eruv Under the First Amendment and Religious Land Use and Institutionalized Persons Act, University of Maryland Law Journal of Race, Religion, Gender and Class 9 (Spring 2009): 93–94.
(40.) Hillel Y. Levin, “Rethinking Religious Minorities’ Political Power,” University of California–Davis Law Review 48 (June 2015): 1617–1685.
(41.) Stump, Geography of Religion, 266–267.
(42.) Stump, Geography of Religion, 268.
(43.) See generally John C. Blakeman, The Bible in the Park: Federal District Courts, Religious Speech, and the Public Forum (Akron, OH: University of Akron Press, 2004). See also Blakeman, “The Religious Geography of Religious Expression: Local Governments, Courts, and the First Amendment,” Journal of Church and State 48, no. 2 (2006): 399–422.
(44.) Capitol Square Review and Advisory Board v. Pinnette, 515 U.S. 753 (1995), 760.
(45.) Blakeman, The Bible in the Park, 145–148.
(46.) Stump, Geography of Religion, 269.
(47.) Blakeman, Bible in the Park, 74. A prominent Muslim scholar of Islamic law issued a Fatwa allowing for the legality of the frieze under Islamic law. See Taha Jabar al-Alwani, “Fatwa Concerning the United States Supreme Courtroom Frieze,” Journal of Law and Religion 15, no. 1–2 (2000–2001): 1–28.
(48.) Van Orden v. Perry, 542 U.S. 910 (2005); McCreary Co. v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005). See also Nicolas Howe, “Thou Shalt Not Misinterpret: Landscape as Legal Performance,” Annals of the Association of American Geographers 98, no. 2 (2008): 435–460.
(49.) Stump, Geography of Religion, 269.
(50.) See Sue Guinn Legg, “Christian Flag Removed from School Board Meeting Room,” Johnson City [Tenn.] Press, January 22, 2016.
(51.) Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).
(52.) “Amicus Curiae Brief in Support of Petition for Writ of Certiorari on Behalf of Church of God in Christ, Mennonite, Bob Jones University v. United States, 461 U.S. 574 (1983).” Quoted in Robert M. Cover, “The Supreme Court 1982 Term: Forward: Nomos and Narrative,” Harvard Law Review 97, no. 1 (1983); 26.
(53.) Stump, Geography of Religion, 76.
(54.) Cover, “The Supreme Court 1982 Term,” 32. For an overview of Amish settlement of North America, see William K. Crowley, “Old Order Amish Settlement: Diffusion and Growth,” in Annals of the Association of American Geographers 68, no. 2 (1978): 249–264.
(55.) Donald B. Kraybill, “Negotiating with Caesar,” in The Amish and the State, 2nd ed., ed. Donald B. Kraybill, 12 (Baltimore: Johns Hopkins University Press, 2003). See also Donald B. Kraybill and Marc A. Olshan, The Amish Struggle with Modernity (Hanover, NH: University Press of New England, 1994).
(56.) Marc A. Olshan, “The National Amish Steering Committee,” in The Amish and the State, 2nd ed., ed. Donald B. Kraybill, 67–87 (Baltimore: Johns Hopkins University Press, 2003).
(57.) Shawn Francis Peters, The Yoder Case: Religious Freedom, Education, and Parental Rights (Lawrence: University Press of Kansas, 2003), 105. Peters’s study of the Yoder case notes that not all the Amish parents involved were interested in appealing their convictions (and $5 fines). Kraybill (The Amish and the State, 12) has pointed out that the Amish will use lawyers and the legal system to execute wills, contracts, and property transactions, but they are very reluctant to use the law and litigation to protect their basic religious beliefs and community interests.
(58.) Wisconsin v. Yoder 406 U.S. 205, 235 (1971).
(59.) To be sure, Wisconsin v. Yoder was decided before the advent of the home school movement and the subsequent relaxation of state-level mandatory school attendance laws.
(60.) Roger W. Stump, The Geography of Religion: Faith, Place, and Space (New York: Rowman and Littlefield, 2008).
(61.) Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002).
(62.) Bret E. Carroll, “Worlds in Space: American Religious Pluralism in Geographic Perspective,” Journal of the American Academy of Religion 80, no. 2 (2012): 304–364.
(63.) John C. Blakeman, The Bible in the Park: Federal District Courts, Religious Speech, and the Public Forum (Akron, OH: University of Akron Press, 2004).
(64.) John C. Blakeman, “The Religious Geography of Religious Expression: Local Governments, Courts and the First Amendment,” Journal of Church and State 48, no. 2 (2006): 399–422.
(65.) David M. O’Brien, Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah (Lawrence: University Press of Kansas, 2004); Jerold Waltman, Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores (New York: Palgrave Macmillan, 2013).
(66.) Ira Lupu et al., Churches in Court: The Legal Status of Religious Organizations in Civil Lawsuits (Washington, DC: Pew Forum on Religion and Public Life, 2011).