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Response of an Amateur Historian and a Religious Citizen

Published online by Cambridge University Press:  24 April 2015

John H. Yoder
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Extract

My first reflex in the face of a good debate within a discipline other than my own is to try to find a way through the melee. One would like to stand so to speak outside the fray in order to adjudicate or mediate. In this case I cannot do that. The two players, Marshall and Pepper, seem to a layman to be playing on the same field, with some of the same landmarks on the skyline, but they seem to be playing by different rules, each team having brought along its own ball and its own referee. I see no way, and I am not sure there is a need, to stand between or above the two positions to adjudicate their difference.

I therefore must attempt to come at the conversation from two other perspectives, grateful to have been educated just a little by watching the expert jousting laid before us. I shall attempt, once as amateur historian of American culture, and once as simple “religious” citizen, to describe what seems to me to be at stake, giving attention especially to the gaps where the two papers — in what they agree about more than in their debate — leave this reader dangling.

Type
Georgetown Symposium on Church and State and Society and Law Colloquium
Information
Journal of Law and Religion , Volume 7 , Issue 2 , 1989 , pp. 415 - 432
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. I have been educated as well, and assisted in clarifying this text, by numerous helpful comments of Dr. William T. Buss, of the College of Law, University of Iowa and of Donald Kommers of Notre Dame. Editors' Note: The papers by Marshall and Pepper appear respectively at 7 J. Law & Relig. 363 & 323 (1989)CrossRefGoogle Scholar.

2. This section was drafted before I had access to the Curry paper. Especially with regard to Wilhams and Penn, Curry supports my argument. Editors' Note: The Curry paper appears at 7 J. Law & Relic 261 (1989)CrossRefGoogle Scholar.

3. Lindsay, A.D., The Essentials of Democracy 11–19 (1929)Google Scholar; The Modern Democratic State 115ff (1943)Google Scholar.

4. Bronner, W., William Penn's Holy Experiment (1962)Google Scholar.

5. I summarize the several forms of this “prophetic” or “radical protestant” critique of religion briefly in Yoder, J., The Priestly Kingdom, 182 (1985)Google Scholar.

6. I agree that for some “true believers”, as for the insane, the conviction may exist that there is only one way to see things, and that this “way to see” is not derived from critical ratiocination. Yet, this does not mean that those views are “externally imposed” or held involuntarily or irrationally.

7. Note that the form of address, “Friends”, is the same as the terms with which Quakers address one another.

8. Annals of Pennsylvania, from the Discovery of the Delaware, 1609-1682, 522–533 (Hazard, S. ed. 1850)Google Scholar. Also in The Papers of William Penn Vol II, 1680-1684, 128 (Dunn, R. and Dunn, M. eds. 1982)CrossRefGoogle Scholar. I am grateful for the research assistance of Rev. Laurel Jordan.

9. How does Penn know he has a divine charter and what its provisions are? Why does he assume that the King of England had the right to give him these lands? Those questions would demand more study. Yet on the surface of his argument we sense the analogy to the “Governor” thesis of the Madison quote.

10. Nor would I grant that either “secular humanism” or “value-free” proceduralism would be validated as adequate moral systems because they provided more of the vocabulary for the debate more recently.

11. This separation between matters handled by bureaucratic discretion, matters handled by legislation, and matters adjudicated by appeal to the constitution is not a theoretical one. Neither author refers to it. It is rather a conceptual one dictated by the way litigation works. Both Roe v. Wade, 410 U.S. 959 (1973) and Furman v. Georgia, 409 U.S. 902 (1972), demonstrate how important legal changes achieved by constitutional argumentation can be counterproductive long-range because of the legislative backlash they provoke.

12. See, e.g., Nowak, J.et. al., Constitutional Law 108, (3d ed., 1986)Google Scholar.

13. Marshall, supra note 1, at 364. U.S. vs. Seeger, 380 U.S. 163, 185 (1965); Marcus, The Forum of Conscience: Applying the Free Exercise Clause, 1973 Duke L. J. 1217, 1242–1244Google Scholar.

14. United States v. Seeger, 380 U.S. 163 (1965).

15. Most of the colonies already had granted exemption from military service, and from the oath, to Quakers and the German pacifist sects, by law or by custom, before 1789. Cf., MacMaster, R.et. al., Conscience in Crisis; Mennonites and Other Peace Churches in America 1739-1789, 61–164 (1979)Google Scholar. It is more logical to explain the framers' not mentioning these instances of exemption on the grounds that they were taking them for granted, and were intending to build a floor under them with the free exercise clause, than to claim that the omission was intended to be read as a denial. Nonetheless the outcome of this procedural distinction has been that, as in the present papers, draft exemption is seldom discussed as a religious rights issue.

16. The hulabaloo in Washington in 1989 about the flag considered it as a form of free speech. More important, to give the flag sacred status is an act of establishment.

17. This is further treated in J. Yoder, supra note 5, at 172.

18. It is part of the odd shape of the establishment clause as well, as pointed out by John Garvey, that no one in particular has standing to litigate against most cases of what could be called “establishment”, especially if it is not one extant sect which is privileged, since it is not evident in most cases who is hurt by establishments of religion. Editors' Note: Garvey's paper appears at 7 J. Law & Relig 275 (1989)CrossRefGoogle Scholar.

19. From the Apostle Paul's assertion that the Christians' “citizenship” (politeuma) is “in Heaven” to the contemporary literature of church renewal and social criticism, it is frequent to speak of the church as a foreign body in the world: Cf. Stringfellow, W., An Ethic for Christians and Other Aliens in a Strange Land (1973)Google Scholar; Hauerwas, S. and Willimon, W., Resident Aliens' Life in the Christian Colony (1989)Google Scholar; Webber, G., God's Colony in Man's World (1960)Google Scholar. Literature in this perennial genre makes an important pastoral point. Yet the heir of Williams and Penn (or of Tertullian) does not grant that from the perspective of the properly informed ruler(s), he can be treated as a second class citizen.

20. See, e.g., Gillette v. United States, 401 U.S. 437 (1971) (holding that the statutory exemption which did not extend to those who refused to fight “just wars” was not therefore unconstitutional).

21. Some kinds of state control of education avow the intent to use it as an instrument of “Americanization” or cultural homogenization. Then “final control” is a fitting term. In other cases the controllers would deny that. They would claim that their accreditation exists only to provide quality control and to protect against parental neglect. To the extent that the latter is the objective of well-intended regulatory measures, it should not be hard to protect the authentically grounded claim to exemption.

22. Wisconsin v. Yoder, 406 U.S. 705 (1972).

23. See e.g., Grove v. Mead School Dist., 753 F.2d 1528, 1534 (9th Cir. 1985).

24. This is the point of validity of the “strangers and pilgrims” theme, see supra note 19 and accompanying text.

25. Judicial defense of exemption claims is complicated by the fact that some of the people who would most logically have a right to such defense, in the sense that their dissent is the most deeply based, and their dissonance from the main stream most strong, often are disinclined to use the judicial process in their own interest, for a number of prima facie strong reasons:

-There is cynicism born of the long experience of ghetto communities, as to whether the courts will ever protect the most fundamental dissent, especially when it is culturally alien. Certainly the Mormon experience, reviewed by Firmage, supports that cynicism. Editors' Note: Firmage's paper appears at 7 J. Law & Relig. 281 (1989)CrossRefGoogle Scholar.

-There is realism as to the cost, complexity, and unpredictability of using the courts.

-There may be a holistic judgment like that of Gandhi and Tolstoy (both persons with legal training and experience) to the effect that litigation is an inapt instrument to remedy fundamental ills.

-There may be a Gospel literalism like that of the Amish, rooted in Matt 5:23, 40; 7:1; I Cor, 6:1-8.

This fact, that some people entitled morally to exemption may not use the courts to claim it, heightens the oddity noted above of our system's discriminating between easy exemptions, affirmed by the simpler instruments of law, administrative discretion, or custom, and hard ones having to be handled by the much clumsier instrument of litigation. The oddity is heightened yet further by the observation that the decision as to which exemptions will be litigated is made not by believers but by low-level bureaucrats. Neither Frances Quaring nor Jonas Yoder would have made history if local officials had used their discretionary power, as others had done in other jurisdictions, to authorize the exceptions which later the court mandated. The lesson is that a better government, a kinder and gentler local bureaucracy, would result in fewer judicially defined exemptions for the lawyers to study.

26. This readiness to suffer is sometimes formally used as a good faith test. Some European democracies make recognition as conscientious objectors to military service subject to the objector's willingness to serve longer than the soldiers, or to accept future civil disabilities such as disqualification for public office.

27. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).

28. Bowen v. Roy, 476 U.S. 693 (1986).