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Teachers v. church schools v. the government

The conflicting claims of legal rights of church teachers and church schools are being further tested in the federal courts.

In California this week, a federal judge ruled in the case of Family, Life, Faith and Freedom v. Lynda Serrano. In this case, a Calvary Chapel school sued two former teachers to prevent them from suing the school.

The teachers refused to submit statements of faith and pastors' recommendation letters, a year ago, and they were let go. The school deems its teachers to be "spiritual leaders," and considers the paperwork necessary in evaluating instructors' continuing spiritual leadership qualifications. It's not clear from the court documents why the teachers did not want to explain their faith and get pastors to write them letters of recommendations, but when their contracts were not renewed, they threatened to sue for wrongful termination. The church school then took its former teachers to federal court.

The lawyers for the school argued that if the teachers were allowed to make the case they had been discriminated against, that would violate the church's constitutionally protected right to the free exercise of religion.

Judge Dolly M. Gee, an Obama administration appointee, granted the teachers' motion to dismiss the suit on Tuesday. Interestingly, the ruling doesn't go so far as to say the teachers can sue their religious employer, but does say federal law cannot prevent them from filing wrongful termination suits in state court.

Gee wrote:

it is apparent that Plaintiff’s entire complaint consists of anticipated defenses to a yet-to-be-filed state court religious discrimination suit, and thus no federal question is raised. This Court therefore has no subject matter jurisdiction.

The judge criticized the lawsuit fairly harshly, calling the school's lawyers incompetent several times, and suggesting the suit was meant to harass and intimidate the ex-teachers. Some of the school's arguments would have been "dispelled by a modicum of competent legal research," Gee wrote. The church was ordered to pay the ex-teachers' lawyers' fees.

The school, for its part, will reportedly appeal the decision.

This case connects to the landmark Supreme Court decision handed down last year, where the court ruled the First Amendment right to free religious exercise entails a "ministerial exception" to laws against employment discrimination. In Hosanna-Tabor v. EEOC, the Supreme Court decided religious groups get to establish their own standards for determining who is a minister, and that if someone is considered to be a minister, they are not entitled to protections against employment discrimination. Ministers can be fired for basically any reason.

The Hosanna-Tabor case involved a "called" teacher at a Lutheran school. She got sick, went on sick leave, and then when she was approved to go back to work by her doctors, the school made moves to dismiss her because of anxieties about her condition, narcolepsy. The teacher threatened to sue, and then the school fired her for making the threat, which they said was a violation of their beliefs about conflict between Christians.

No secular school would have been allowed to fire that teacher. No religious school would either -- unless it had established that teachers were more than teachers, they were ministers, and so subject to all the capriciousness of those they served.

In the majority opinion, Chief Justice John Roberts wrote, "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

In Family, Life, Faith and Freedom v. Lynda Serrano, the Calvary Chapel school lawyers cited Hosanna-Tabor, about the rights of religious groups to not be held to the standards of employment law. The teachers at their school are also considered ministers, and were also fired for threatening legal action against a church school employer. The school's lawyers attempted to argue that the ministerial exemption from employment law should also mean protection from possible discrimination litigation in state court.

According to Judge Gee, the federal courts don't have the jurisdiction necessary to block anticipated state court lawsuits that might violate churches' religious right of hiring and firing ministers. Whether or not the appeal will go anywhere remains to be seen.

It seems likely, though, that the courts will be facing more cases like this in the future. They'll continue to hear cases where there are conflicting claims about the rights of teachers and church schools, where they have to determine the scope of this constitutional protection of a "ministerial exception," and figure out the consequences and the logical, legal extensions of last year's landmark decision for religious liberty.

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Stephen King and supernatural intervention

More than 100 million Americans say they believe in theistic evolution. According to Gallup polls, the percentage of people believing that humans evolved with divine guidance has declined a bit in recent years, but there's still more than a few who say that's what happened. These people look at nature and natural processes and see, à la Intelligent Design, that "certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process."

One of those 100 million Americans is named Stephen King.

King, the 66-year-old master of horror fiction who has sold more than 350 million copies of such works as Carrie,  'Salem's Lot, The Shining, It, Cujo, and now Joyland, is obviously no stranger to the idea of the supernatural. But supernatural intervention into the normal course of events isn't, apparently, just a plot mechanism for King. He also sees signs of supernatural intervention in the world around him.

Interviewed by Terry Gross on NPR this week, King said:

If you say, 'Well, OK, I don't believe in God. There's no evidence of God,' then you're missing the stars in the sky and you're missing the sunrises and sunsets and you're missing the fact that bees pollinate all these crops and keep us alive and the way that everything seems to work together. Everything is sort of built in a way that to me suggests intelligent design. But, at the same time, there's a lot of things in life where you say to yourself, 'Well, if this is God's plan, it's very peculiar,' and you have to wonder about that guy's personality -- the big guy's personality.

King notes he's not too worried about being consistent, and says he's not sure there's evidence for God but he's chosen to believe anyway. He offers a version of Pascal's wager. "I choose to believe it ... there's no downside to that."

King also talks about the religious influences of his youth in the interview. He says he watched a lot of televangelists as a child, specifically Oral Roberts and Jack Van Impe, who he calls "a real hellfire guys." He went to a Methodist church as a child, and says it was like a "bottle of soda with the cap off for 24 hours," real "Yankee religion."

"They tell you you're going to hell," he says, "and you're half asleep. What kind of preaching is that?"

Christian interpreters of Kings work have long noted the religious undertones. In King's work, when he tells you about hell, you're not falling asleep. And when the supernatural intervenes, the author thinks that might not be so unusual.

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Nine months after resignation, American Orthodox primate is retired

Metropolitan Jonah was forced to resign as head of the Orthodox Church in America last July, but now, more than nine months later, the church and the former primate have reached an agreement on the details of his retirement. The brief and not-very-informative announcement from the OCA reads:

His Eminence, Metropolitan Jonah met with a number of members of the Holy Synod of Bishops of the Orthodox Church in America at Saint Tikhon’s Monastery, South Canaan, PA and reached an understanding with the Holy Synod concerning his retirement.

The retirement agreement most likely has to do with finances. In his resignation letter, Jonah pleaded with the synod to consider his financial responsibilities, noting that he was the sole support for his parents and his (now deceased) sister. There is also speculation -- which I have no real way of evaluating, but which seems plausible -- that Jonah might want to leave the OCA altogether, negotiating to be released so that he could work with another American Orthodox church. There's some evidence Jonah has already begun to be active outside of the OCA.

If that's true, it might explain why the negotiation process has taken so long.

Jonah's resignation was offered and accepted last Summer. In his resignation letter, he noted he resigned "as per" the "unanimous request" of the Holy Synod, confirming rumors he was ousted. Since then, there's been confusion about whether or not his resignation meant he was retired or he was returning to duties as an archbishop, and a cryptic official announcement of "ongoing discussions" between the church and Jonah and lawyers, "motivated solely by a prayerful desire to achieve an appropriate resolution of matters of care and mutual concern."

In the last nine months there have also been calls from the OCA faithful for an investigation of the way in which Jonah's resignation came about, accusations that Jonah mishandled serious cases of clerical misbehavior, and lay investigations of the evidence supporting the allegations against Jonah.

He was head of the OCA for only about 3 1/2 years.

Jonah once described his time as primate of the American church as a "relentless barrage of criticism," but also "an administrative disaster."

Given the evidence, "an administrative disaster" also seems like to could describe the OCA itself.

Jonah rose to his position at a moment of crisis in the OCA. The church was accused of misusing millions of dollars of donations: paying personal credit card debts instead of purchasing Bibles, redirecting building funds to pay sexual blackmail, siphoning off monies for charities for family members, failing to document spending, and sometimes falsifying documentation. Large amounts of cash disappeared, and discretionary accounts were used liberally, without any kind of accountability. An internal investigation confirmed many of the allegations, discovered other improprieties, and found "an incredible failure at many levels to act responsibly."

This had been going on -- and being covered up -- since the late '80s, but the scandals erupted in 2008.

Jonah was chosen by the bishops to respond on their behalf at that moment. This was at partly because as the newest bishop, he was not associated with the scandal in any way. He wasn't tainted by the corrupt leadership. His answers and explanations were credible, and he was seen as an honest broker.

As the first US-born leader of the church that can trace its American history back to the 1794 mission of Russian Orthodox monks to Kodiak Island, Alaska, he was also the first convert to lead the church increasingly marked by the presence of converts. There was a lot of affection for Jonah among the converts. And there was a thought, in 2008, when he was elevated to archimandrite, then elected bishop, then metropolitan, that he was the one who could reform the institutions of the church, bring unity to the diverse Orthodox groups in the US, forge ties with Catholics and conservative Anglicans, mobilize and inspire the sometimes-alienated faithful, and enable the church to meet the challenges of 21st century America.

In retrospect, the hope in Jonah seems more than a little over optimistic.

Whether or not Jonah is to be held responsible for mishandling a priest accused of rape, and other scandals involving clergy, he didn't manage to transform the way the institution deals with such things. However one rates Jonah's administration, the church's underlying problems don't look like they have changed. To whatever extent he managed to restore trust in the institutions and the ecclesial authority of the OCA, the events of the last year would seem to have undone that work.

It's an open question as to how -- and whether -- the OCA will weather the next scandal.

At the time of Jonah's resignation, some said "the institutional church has to collapse in order to clear out the internal moral rot." Others said if you looked, you could see the institution's collapse happening in slow motion. As a new primate was selected and Jonah was involved in vaguely described legal negotiations, Rod Dreher, one of the more visible converts to Orthodoxy, wrote,

The OCA [now] has three living ex-metropolitans -- surely a record in world Orthodoxy, given that metropolitans typically serve until they die. The first two retired in disgrace, and Jonah, the reformer, was retired in large part because he stepped on too many toes of the old guard [....] 

There is so much anger and depression and radical loss of confidence in the leadership of the fast-shrinking OCA, especially the alienation of so many in the Diocese of the South, the only one of the church’s dioceses showing significant growth (and that’s not enough to make up for the losses elsewhere).

The faith and practices of Orthodox believers and the lives of parish communities are often only distantly related to the institutional authorities, but that doesn't mean doesn't mean the latter doesn't affect the former. Orthodoxy will of course continue as a minor presence in America. They make up .6 percent of the populace, fragmented into various, traditionally ethnic churches. It is at best uncertain, though, what part the OCA will play in that presence, and whether or not it will continue, as a non-ethnic church, to serve as a home for converts and to further Orthodoxy's influence in America.

The way in which Jonah retired, and the events that transpired between his resignation and retirement do not bode well for the OCA. The question is, what happens now? What will the retired OCA metropolitan be doing, and how will those who adored him respond?

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Alton T. Lemon, 1928 - 2013

Alton T. Lemon, the plaintiff in a landmark Supreme Court case on the separation of church and state, has died at the age of 84. A very private man, little is known of his life apart from his membership in the American Civil Liberties Union and brief time as president of a Philadelphia Ethical Humanist Society. His obit didn't make the New York Times until 21 days after his death.

In the late 1960s, though, he lent his name to the lawsuit where the Supreme Court established the three-part legal test for determining whether or not a government has violated the constitution by "respecting an establishment of religion." Wherever American lawyers debate whether or not a government has, in fact, gone so far as to endorse a religion, Lemon's name is invoked.

Asked about his role in First Amendment history, Lemon said he was proud to have been involved in Lemon v. Kurtzman, but:

I have never sought public recognition for my role in the case. Almost all of our friends are Protestant and some don’t understand my position. We had one friend who was a schoolteacher who thought it was terrible that God was being removed from the schools .... Some people go down in history in famous books, but I might go in a dusty law book or something. I don’t view things out of proportion.

It's not just the dusty history books, though. The three-part establishment test that bears Lemon's name, the Lemon Test, is a contentious bit of jurisprudence. It has been attacked from a number of directions and may not survive the John Roberts court.

The two most conservative justices on the court, Antonin Scalia and Clarence Thomas, issued a blistering attack on the Lemon test in 1993. In a concurrence authored by Scalia, the Lemon Test was described as "Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad." Especially bothered by the inconsistent use of the judicial standard, Scalia accused his fellow justices of invoking or ignoring the Lemon Test as suited their purposes.

"Such a docile and useful monster," he wrote, adding:

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced .... I will decline to apply Lemon -- whether it validates or invalidates the government action in question.

One need not endorse either Scalia's legal philosophy or his argumentative style to think there's a problem with the Lemon Test. It's maddeningly vague and wide open to wildly divergent interpretations.

According to the Lemon Test, a government has endorsed a religion if:

• a law is passed which does not have "a secular legislative purpose,"
• a statute's "principal or primary" effect is either to advance or inhibit religion,
• a governmental action results in "excessive government entanglement with religion."

In that decision, then-Cheif Justice Warren Burger said the test was necessary because of the vagueness of the First Amendment prohibition of "respecting an establishment of religion," and because the constitutional guarantee does not just prohibit a state religion, but many other state-religion interactions as well.

As Burger wrote:

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be 'no law respecting an establishment of religion.' A law may be one 'respecting' the forbidden objective while falling short of its total realization. A law 'respecting' the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.  

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.'

The lines that have been drawn, though, are hardly clear ones. How can the secularity of a law be determined? By what measure is the "primary" effect of a law to be judged? An entanglement should be considered excessive in comparison to what? And to whom does it have to seem excessive?

In at least 20 recent federal court cases, the Lemon Test has been used in different and inconsistent ways. Judge Richard Posner, a Reagan appointee, described the Lemon Test as "formless, unanchored, subjective." In a 1980 ruling, written by Kennedy-appointee Byron White, the Supreme Court noted that the Lemon Test lacked "clarity and predictability," two things typically valued in a law.

Legal scholar J.H. Choper, who clerked for Earl Warren and now teaches at Berkley, said the endorsement test that bears Alton T. Lemon's name "fails to provide a judicial standard capable of principled application." According to Choper, "application of the Lemon test generated ad hoc judgments incapable of being reconciled on any principled basis," and resulted in a kind of "conceptual disaster area."

This conflict and confusion is at issue in two current cases which could give the Supreme Court the opportunity to revisit the question of the Lemon Test.

The court has agreed to hear Town of Greece v. Galloway this term, and decide whether prayers offered by private citizens to open town council meeting violates the First Amendment prohibition on respecting establishments of religion. A lower court, citing the Lemon Test, concluded that because the majority of such prayers were Christian, the town was effectively affiliating with the Christian faith. A central part of the dispute is over whether the second prong of the Lemon Test -- the matter of primary purpose -- should be measured in terms of intent or effect.

The court is also considering hearing Elmbrook School District v. Doe, a case where graduation ceremonies were held in an evangelical church. There's no dispute this was done for practical reasons, but the lower courts have disagreed on whether or not the school's use of the religious space was excessive entanglement and over whether or not it advanced religion. One lower court ruled that observers would be able to separate the religious symbols of the church sanctuary from the proceedings.  Another disagreed, concluding that "Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state."

It's possible that rulings on either or both of these cases could substantially transform the test by which "respecting an establishment of religion" is judged.

The late Lemon, for his part, reported being worried in the last decade of his life that the courts would erode the legal separation of church and state. He wasn't worried about the judicial standard that bore his name per se, but was bothered by the trend he saw of conservative justices  allowing for government endorsements of Protestantism. In 2003, he told the Philadelphia Inquirer that "separation of church and state is gradually losing ground, I regret to say."

A year later, he expressed his suspicions that conservatives would establish a state church, if they could.

"At this point in my life," the then-76-year-old said, "I seriously wonder why we have religion. I am not so sure it does more good than harm. I think that the battle for church-state separation has to be a continuing fight."

And, judging by the contentions over the Lemon Test, it is.

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The Rich Mullins story

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The Workingman of Nazareth

Jesus as socialist radical, by Art Young, in The Masses, circa 1913 (top) and 1917 (bottom).

Young said of socialism: "I think we have the true religion. If only the crusade would take on more converts. But faith, like the faith they talk about in the churches, is ours and the goal is not unlike theirs, in that we want the same objectives but want it here on earth and not in the sky when we die."

More of his work can be seen here.

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An atheist prays in Az. state legislature

It's normally assumed that atheists don't pray. When an atheist state representative in Arizona -- one of the few openly atheist lawmakers in the country -- was tasked with offering a prayer to start an afternoon session of the state legislature, though, he stepped up. Juan Mendez, a 28-year-old Democrat who identifies labor leader and civil rights activist Cesar Chavez as his political hero, asked the legislators not to bow their heads, and then offered up a god-free prayer.

The Phoenix New Times reports:

'This is a room in which there are many challenging debates, many moments of tension, of ideological division, of frustration,' Mendez said. 'But this is also a room where, as my secular humanist tradition stresses, by the very fact of being human, we have much more in common than we have differences. We share the same spectrum of potential for care, for compassion, for fear, for joy, for love.' 

Mendez continued, 'Carl Sagan once wrote, "For small creatures such as we, the vastness is bearable only through love."'

According to the Arizona Republic, the other lawmakers in the house had no response. In a comment Mendez left on the popular atheist blog The Friendly Atheist, he said "there are more non believers than you would think" in Arizona.

Mendez was elected to office in 2012. As a lawmaker, he has authored legislation that would bar credit card company marketers from college campuses, allow voters to register to vote the day of elections, reform the procedures for assessing affordable housing, require home owners associations to allow vegetable gardens, and start a micro enterprise development program. He hasn't sponsored or co-sponsored any legislation specifically related to religion or atheism.

Update (May 23): Mendez's secular humanist prayer did get some response, after all.

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Printing

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Biography for a Calvinist

A biography ... invites the reader (as it demands of the author) to come to terms with the person at the center of the story. Readers are free to draw their own conclusions about [Abraham] Kuyper as they move along through this volume; I only hope to have supplied ample, nuanced evidence to make theirs a balanced judgement. Here is mine: Abraham Kuyper was a great man but not a nice one. He was immensely talented, energetic, and driven to great exploits. He appeared always confident, partly to quiet his own insecurities. He was an ambitious person who sought power, and often felt uneasy over that quest. He could be congenial and polemical, sometimes to the same person in fairly quick succession. He loved radical options and was typically more generous to opponents than to spiritual kin who differed with him on details. He loved having collaborators and disciples but drove them away when they stepped up as equals. In public he often showed a better understanding of God than himself. He majored in ideas -- Big Ideas above all -- with some impatience over the intricacies of mid-range policy or scholarly discourse as it evolved in its own deliberate way [....] 

I will thus pain Kuyper warts and all -- both the real ones and the ones that might seem like blemishes only to us. As a real Calvinist he would understand such a portrait, even though he might not like it. My critical observations are not meant to disparage his motives, his goals, or his achievements; indeed, these are remarkable enough to survive any record of his personal foibles. Just as Kuyper would own that he was in part a child of his times, so he would, ultimately, appreciate the citation I make, as a fellow Calvinist, from the apostle Paul, that the treasure of the gospel comes to us in earthen vessels to show that its transcendent power belongs to God (2 Cor. 4:7).

-- James D. Bratt, Abraham Kuyper: Modern Calvinist, Christian Democrat

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The correlation of unaffiliated people, unaffiliated churches

There are two major changes in the recent American religious landscape, which both start in the 1980s and get to be really dramatic by the 90s but continue into the 00s. 

Here they are depicted in graphs created by sociology professor Bradley Wright:

Here we see that the growth of religiously unaffiliated people is quite similar, historically, to the growth of denominationally unaffiliated churches. 

Regarding the growth of "generic" Protestants, Wright reports it is "One of the more robust trends in American Christianity," that "the percentage of Protestants who are inter- or non-denominational has skyrocketed."

The growth of the religiously unaffiliated has been much discussed, here and elsewhere (see: Time, USA Today, PBS). Wright, with this second graphs, notes that three different polls, asking different questions, have ended up with very similar results.

Looking at the similarities between the two cultural shifts, I can't help but wonder if they're not best understood as connected. Not that these two distinct developments should be collapsed into one, but that they both result from underlying changes. My intuition is that a good explanation of one development would work, as well, for the other. 

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Expanding the religious liberty argument against ObamaCare

A bill being considered in Congress would allow individuals a religious exemption from ObamaCare. The bill, named the Equitable Access to Care and Health (EACH) Act, would make it so people could opt out of the mandate to buy health insurance by signing a sworn statement saying they have religious objections to some of what is covered by health insurance.

The way the Affordable Care Act currently stands, when it goes into effect in 2014, individuals will be required to buy health insurance or pay a tax. This amendment would create away for those whose "sincerely held religious beliefs would cause the individual to object to medical health care that would be covered under such coverage" to not buy health insurance and not pay the tax. The exemption could be used by Catholics and evangelicals who oppose some or all contraceptives, as well as others.

Creating a legal exemption that more than 50 percent of the country could ask for would, presumably, effectively kill health care.

The bill is currently being reviewed by the House Ways and Means Committee, but may not ever go to a vote.

Whether or not the EACH Act becomes law, though, it shows another angle of the conflict between those who want universal health care and those who believe that infringes on religious liberty. It's also another way that those opposed to ObamaCare are seeking to undermine it anyway they can before it becomes law.

The bill was sponsored by Republican Congressman Aaron Schock from Peoria, Illinois, who has voted to repeal ObamaCare, and is on record calling the law "deeply flawed."

Schock is considered to be a fiscal conservative, moderate on social issues. He is affiliated with a Conservative Baptist Association church and has positioned himself as someone generally supportive of social conservatives and of the sorts of groups who have have seen ObamaCare as an assault on their religious exercise, but with a stronger emphasis on economics. His main critique of the Democratic health care plan has been its "potential budget busting impact and negative economic consequences." He has said,

I believe that the Affordable Care Act has hurt job creation, burdened small businesses, put government bureaucrats between patients and their doctors, and taken the flexibility away from states like Illinois to make their own health care decisions.

The EACH Act comes at ObamaCare from an entirely different angle, though, having more in common with the scores of non-profit and business lawsuits over the contraception mandate than debates about financial costs and consequence. Those legal battles have, so far, only concerned non-profits and businesses required to provide health care for their employees, though. This bill takes that same argument and makes it on behalf of individuals.

Schock's bill suggests this front of that fight could be dramatically expanded, with millions of individuals claiming health care violates their Constitutionally guaranteed right to the free exercise of their religion.

The EACH act has been co-sponsored by 50 Republicans and 26 Democrats.

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US federal court: Homeschoolers aren't persecuted in Germany

Homeschoolers are not a "particular social group" facing persecution in Germany, a federal appeals court has ruled, and homeschooling in a country where it's illegal is not grounds for asylum in the United States.

The ruling is a legal defeat for Uwe and Hannelore Romeike, a German homeschooling family, and the homeschooling activists who sought to use the case of Romeike v. Holder to get homeschoolers classified as a special, protected class.

The Romeikes have argued that they were being persecuted by the German government because they were homeschoolers; the Obama administration's Justice Department made the case that running afoul of the law does not amount to persecution, per se. In a ruling released yesterday, three federal judges unanimously agreed with the Obama administration.

Writing for the court, Judge Jeffrey S. Sutton wrote:

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground. [....]  

The Romeikes have not met this burden. The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.

According to US law, five groups of people are eligible for asylum if they are being targeted by their home governments because they belong to one of those categories: race, religion, nationality, political opinion, or belonging to a "particular social" group. The last is not defined by the law, and has been only vaguely defined by the courts. The Romeike's lawyers were attempting to argue that homeschoolers should be considered such a "particular social group," negatively targeted in Germany.

The court rejected that argument, finding that the German law was not directed at homeschoolers, to suppress or oppress them, but is a law of general applicability.

According to Sutton (a George W. Bush appointee), the Romeikes needed to prove one of number of things. Either they had to prove that Germany's compulsory education law was designed specifically, "on its face," to persecute the particular social group, homeschoolers, or they had to prove that the law is selectively enforced to punish a particular social group (i.e., homeschoolers), or they had to prove that the law is, in practice, only applicable to that group.

Even assuming that homeschoolers are to be taken as a particular social group, and so in principle eligible for asylum, the Romeikes did not present evidence that "the compulsory school attendance law is selectively applied to homeschoolers" or that "homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law."

In this ruling, the court affirmed that parents do have the Constitution-protected right to "to direct the upbringing and education of children under their control," an issue that had raised concerns among US homeschoolers. The court found, though, that that is not legal grounds for asylum:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of “parents and guardians to direct the upbringing and education of children under their control" does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The court cited Samuel Alito, now a conservative Supreme Court Justice, to support this argument. In the 1993 case of Fatin v. INS, where a woman wanted asylum from Iran on the grounds she was upperclass, educated, a feminist and a not a Muslim, Alito wrote,

the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world’s population would qualify for asylum in this country -- and it seems most unlikely that Congress intended such a result

Alito could get the chance to revisit that argument, as the Romeikes' lawyers hope to take this case to the Supreme Court. Michael Farris, chairman of the Home School Legal Defense Fund that recruited the Romeikes from Germany and is representing, said the group will file an appeal.

Whether or not the court is interested in hearing this case is another question.

For now, Germans who want to move to the US to homeschool their children will have to apply for immigrant visas, rather than apply for asylum.

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'Slap a bonnet on the cover'

Almost any popular discussion of Amish romance novels -- the very successful evangelical-produced fiction with Old Order Amish settings and characters -- includes mention of the iconic covers. These are the "novels with covers adorned with beautiful, bonneted women and buggies," as one reporter put it. Or, as another observer wrote more elaborately, these are fictions with

covers each backlit with the golden glow of God’s everlasting presence and bucolic perfection: wheat fields, corn fields, rivers and barns beneath cerulean or honey skies. A plain-clothed woman in some state of muted emotional duress gazed into the middle distance beneath her white bonnet

Famously, a marketing expert at a Christian publishing house told Newsweek "You slap a bonnet on the cover and double the sales."

It's probably the apparently ironic contrast between the crass commercialism of such covers and the alternative to commercialism represented by the covers that attracts such interest from those who don't read Amish romance. The incongruity can be jarring.

The incongruity can also be really interesting.

Valerie Weaver-Zercher's excellent new book on Amish romance fiction (a book which also features a stock photo of an Amish woman on the cover) notes that these novels are both products of "hypercapitalism" and serve to create a space for those who want an alternative to that hypercaptialism. Part of what readers do with these novels is imagine what it would be like to live at a different, calmer, pace. But to do that, of course, also means buying and consuming the novels, commercial practices that entail participation in the whirring, speeding system of commodity production.

Weaver-Zercher writes that the pace at which these books are produced and consumed has a very direct effect on some of the iconic covers. One model, dressed to look Amish, can appear on as many as 10 different covers.

She writes, "Given their highly visual distinctives, such as dress and transportation, the Amish are particularly ripe for commodification. The emblems of Amish life -- coverings, capes, beards, hats, quilts, buggies -- render them useful in a consumer culture." These covers -- "young models with plucked eyebrows," Weaver-Zercher writes, who "sport Amish garb and gaze into the near distance" -- become free-floating cultural signifiers, signifying a respite from and alternative to consumer culture, which can itself be consumed.

There's only very little information readily available about the actual production of these covers, but the little that's out there is fascinating.

The model on the cover of a re-release of a Beverly Lewis novel, for example, recently talked about how she got into the business:

In 2009, a modeling agent approached [Claire DeBerg] at a wedding and asked her, 'What's your ethnicity?' DeBerg, who is Cherokee, says she is asked this question a lot. 

The agent was looking for 'ethnically vague models' and thought DeBerg fit the bill. 
DeBerg could not find a reason not to try modeling, so she agreed to get some headshots taken and have the agency represent her. 



DeBerg, who happens to be Mennonite and taught English for a while at the University of Northern Iowa, has modeled for Target, Walgreens, and H&R Block. She told The Mennonite magazine that the photographer who shot her picture specializes in Amish book covers, and the woman who did her hair and make-up was an expert in Amish makeup and hairstyles.

The strangeness of all this is obviously worth a laugh. But it's also worth thinking about: this is an example of the production of an imagined alternative to the culture created by that production. The internal contradiction in that results, in some contexts, in a jarring aesthetic experience, but it also, in other contexts, makes a potentially powerful cultural practice possible.

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Churches and taxes

A Congressional committee working on ways to reform and simplify the US tax code has considered recommendations to change the tax exempt status of churches.

The working group hears and summarizes recommendations from interested parties and passes that information on to the elected representatives on the House Ways and Means Committee. There's no straight line from the working group's report to eventual legislation. It doesn't make recommendations, but considers them, digests them, and passes them on. In the more than 500-page report, however, this is the only reform considered that is specific to churches' tax status.

The committee heard three recommendations for change:

• Require churches to apply for tax-exempt status, rather than receiving it automatically
• Require churches to file an annual tax return, even though no taxes are being paid, as do other non-profits
• Ease restrictions on IRS, allowing for more tax inquiries and audits of church finances

The recommendations seem to come from the Secular Coalition for America.

In a letter to the House Ways and Means Committee, the group writes, 

A fair tax system should require accountability from all organizations that are entrusted with the privileges of tax exemption. However, the limitations imposed on the IRS by these three provisions ensure that churches are virtually insulated from public or government oversight. Reporting requirements for tax-exempt organizations are in place to ensure the benefits received are serving the benevolent purpose for which they were intended. Charitable contributions by individuals, foundations, bequests, and corporations reached $298.42 billion in 2011, with religious organizations receiving the largest share -- 32 percent -- of total estimated contributions. Holding religious organizations to the same filing standards as other charitable and educational institutions ensures that the almost $100 billion being donated to these organizations is actually going to help those who need it.

The group is not recommending churches lose their tax-exempt status, but that they be held to the same standards as other non-profits, such as para-church organizations.

The Secular Coalition argues that some specific religious groups, notably the Catholic Church and the Church of Jesus Christ of Latter-day Saints, have used their money in questionable ways and cannot be held accountable because the government has provided them with a "veil of secrecy." The Secular Coalition also objects to the way charitable donations are being used for political purposes in violation of the Johnson Amendment, sometimes flagrantly, as in the Pulpit Freedom movement

The Secular Coalition estimates that "Enabling the IRS to revoke the tax-exempt status of violating religious organizations by requiring application, reporting, and removing [Church Audit Procedures Act] from the tax code could generate up to $16.75 billion per year, almost enough to cover the entire 2012 budget for NASA.

The politics of such a reform make it pretty unlikely. Changing the tax code in these ways would probably be cast as an attack on churches, and it's pretty impolitic to be seen as attacking churches.

There is, though, at least one interesting possibility for a compromise apparent in the clash between the reforms suggested by the Secular Coalition and those sought by those Pulpit Freedom movement. Perhaps the restriction on political activity could be withdrawn in exchange for new requirements that churches apply for tax exempt status, report their taxes and submit to audits in the same way as other non-profits. 

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Another errand into the wilderness

A very American story about a group of people who probably don't think of themselves as American at all: The Old Believers of Russian Orthodoxy.

At the Atlantic Monthly, Wendy Jonassen and Ryan Loughin report:

Members of the Old Believers -- a Russian Orthodox sect that left the church in 1666, in the face of state-issued church reforms -- traveled more than 20,000 miles over five centuries in the search for the perfect place to protect their traditions from outside influences.

Minus a turkey or two and a friendly native who happens to know how to speak the newcomers' language, the travels and travails of the immigrants at Nikolaevsk, Alaska could be the story of the Pilgrims and the First Thanksgiving. What they've done at this outpost in Alaska follows the form of a deep American myth. Even as -- but also sort of because -- it involves resistance to American culture, a passionate desire to be separate, seek a better country, go on an errand into the wilderness, build a city on a hill, and these sorts of things.

It's not just the ur-myth of the Pilgrims, either. As T.C. Boyle ably illustrated in Drop City, where a group of utopian-dreaming hippies move to Alaska and live side-by-side with utopian-dreaming right-wing survivalists, this idea and ideal re-emerges in many ways across American culture and history. Whether it's 16th century Puritans or the Mormons walking to Utah, the Free State Project or the leftist utopians who moved into the California redwoods in the 1880s and named the largest tree in the world the Karl Marx tree, the vision persists, and persists with such strength that people are compelled or inspired to try again what's been tried before. But different this time.

So these Russians in Alaska are reenacting an old, old story, one that's a deep part of the identity of the outside culture they're resisting:

Slight signs of assimilation had begun even in the community's shorter stops elsewhere in the globe, for example in Brazil. 'In Russian, beans is frazol,' Vasily says. 'But we say fijon. That is the Portuguese word for beans.' Yet a century after they left Siberia, many Old Believers still speak Slavonic, an old peasant dialect that dates back hundreds of years. The four to five hour long church service in Nikolaevsk is still completely in Slavonic. And in many homes, the elders only speak Slavonic and children are scolded when they slip into English in the wrong setting. 

But for the first time in Nikolaevsk the majority of the younger generation speaks English as their first language. While many of them can speak Slavonic conversationally, it's only a matter of time before the language dies out completely [....] 

The Slavonic church services may even be in danger. 'I am looking down the line, maybe not in my lifetime, but whoever is going to be the priest after me, is going to have to really consider incorporating more English into the services,' Father Nikolai says.

It's a fear that, at root, John Winthrop wouldn't have found strange.

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Atheist takes questions in Mississippi church

A Mississippi Church of Christ -- a conservative church in a conservative state -- interviews an atheist, Neil Carter of Godless in Dixie, in a very open, cordial discussion. Carter starts the conversation:

People like me are out there, and it'd be interesting to have a conversation. What I have found is now that I'm on the outside of this tradition, I'm often misunderstood by people who just two or three or years ago would not have had such strange reactions to me. It's like I'm painted a different color and have a third eye on my forheard, sometimes, if I tell them I'm not a Christian.

Starting at 7:08, Carter lists top 11 things atheists wish Christians knew about them.

At 29:09, Carter talks about how Christians can better evangelize, and challenges American Christians to experience how atheists are treated in their communities.

At 30:05, Carter takes questions. The first is pretty fascinating, and represents the tenor of this conversation: "We as Christians have periods of doubt. Do you have periods of doubt in reverse?"

Hemant Mehta writes, "If you want an example of what an ideal Christian/atheist dialogue looks like, watch this video."

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Social media's calls to prayer

A remarkable graph showing mentions of "pray for Boston" on Twitter in the days after the Boston Marathon bombing:

At The Atlantic, Eleanor Barkhorn notes anecdotally that the calls for prayer came from unexpected quarters:

What I saw on Twitter and Facebook in the hours after the Boston bombings and the Texas explosion wasn't just faithful people reminding other faithful people to drop everything and pray. It was also the non-religious invoking prayer in a way that they wouldn't under normal circumstances.

After a few days, though, those same friends found different vocabulary with which to relate to the tragedy:

My friends who wrote of praying on Monday night soon began thinking about Boston, or standing with Boston, or loving Boston. It's interesting to see what words besides prayer have emerged as the way to respond to and process the terrible things that happened, and continued to happen, in the city

Elizabeth Drescher names the spike in mentions of prayer the "active memeing of prayer."

She writes:

The phrase #PrayForBoston was appended to tweets through the day, with the likes of Mary J. Blige, teen rapper TZire, Saint Louis Cardinals infielder David Freese, La Toya Jackson, the US Senate Republicans, and, of course, Justin Bieber joining millions across the world in calling for prayer [....]

Of course, the feeling is relatively fleeting in the 'always now' of digital time. By the morning after the bombing, the #PrayForBoston meme had faded as a top trend, replaced by the leaner #Boston hashtag, which mostly tracks news and opinion, with calls for prayer appearing more sporadically. As the sun set on the same day, and the #OneBoston hashtag appeared, we were all apparently meant to be over whatever had prompted so many to call for prayer, focusing our energies on the practical what's next of the tragedy.

Obviously, we can reasonably conclude, prayer memes shared in times of crisis do something besides expressing traditional religiosity, calling us to God, to regular spiritual practice, or to worship.

I don't find this entirely convincing. Religions feelings can be fleeting and yet still be religious. Drescher is thinking of these social media mentions of prayer as secular, but describes them in ways that are quite resonant with ancient faith practices.

She says "calling for prayer in times of tragedy seems to mark a kind of existential angst, sorrow, or confusion for which other words or gestures seem inadequate [.....] The impulse to pray holds a space that we may not even believe exists." But existential angst in not antithetical to prayer. Supplication mingled with doubt and disbelief is at least as old as Pslam 88, which says,

I have become like a man without strength,
Forsaken among the dead,
Like the slain who lie in the grave,
Whom You remember no more [....]
O Lord, why do You reject my soul?
Why do You hide Your face from me?

Perhaps Mary J. Blige and David Freese tweeting #PrayforBoston signals something new. But maybe, it's an old, old human urge, expressed with the medium at hand, as it has been expressed through other media in other ages.

Whatever the interpretation, what we know we saw and what the graph shows is a huge increase in public talk of prayer and then, almost as fast as it happens, a sudden dissipation. It an odd and fascinating measure of a very fleeting moment of American religiosity.

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Science vs. religion vs. facts

Neil DeGrasse Tyson, perhaps America's most popular promoter of science, pointed out several years ago that there's no necessary conflict between science and religion. Not if you're being scientific about it. As a matter of a concrete fact, discoverable by investigation of the world around us, there are people who are scientists and religious, and there are likewise many religious people who embrace science. The idea that there's an intractable, inevitable, necessary struggle to the death between the two abstractions, "religion" and "science," is not supported by any evidence that can be discovered by an empirical investigation.

"The notion that if you're a scientist you're an atheist, or if you're religious you're not a scientist," Tyson said, "that's just empirically false."

Historians have made this argument for a long time. The "warfare model," the "conflict thesis" offered to explain the relationship between religion and science, just doesn't work.

Over a decade ago, Colin A. Russell wrote that the narrative frame of opposition dates back to two anti-religious science history books from the Gilded Age, both of which had political reasons rather than historical reasons to use that frame. There were axes to grind. The historiography was problematic. The evidence didn't support the guiding metaphors of opposition, struggle, and conflict. The narrative of an age-old fight, Russell showed, obscured a lot of important details. Missing from all such histories is the recognition of the many cooperative relationships and cases of close alliance between science and religion. Relatively minor squabbles are exalted, according to Russell, and normativized. Besides: the assertion of conflict has come to stand in for any actual historical explanation of the conflicts that did happen. Conflict thesis histories don't say why conflicts happened, but assume that they have to.

The whole thing is "at best an oversimplification and, at worst, a deception," Russell wrote.

At the time, Russell's thesis was pretty familiar to historians. Changes in the study of history in the 1980s and 1990s led to a near complete rejeciton of the story of a triumphant, progressive march of science through history that was so easily accepted in the 1870s, '80s, and '90s. Concern about "Whiggishness," "presentism," and the "retrospective fallacy" changed how things were done. Now historians' totem was "complexity," and a standard test for historians was whether or not they could persuasively, sympathetically present an account of a position or figure or movement with which they personally disagreed. According to David B. Wilson, "This radically different methodology yielded a very different overall conclusion about the historical relationship of science and religion." The simplicity of the story that these two traditions of knowledge and practice had always and everywhere of necessity been opposed, and also has always and everywhere been clearly distinguishable, became very suspect. And that simple story didn't stand up to suspicion very well.

Ronald L. Numbers assessment was more blunt. Way back in 1985 he said the conflict thesis was "historically bankrupt," and persisted only because of "cliché-bound minds."

"Cliché-Bound Minds" might have been a good title for the new documentary that premiered this week to a full house in Toronto. Instead the film, which features Richard Dawkins, Lawrence Krauss, and a raft of celebrities spouting about the conflict between science and religion, was titled The Unbelievers.

The first four showings of the documentary reportedly sold out, and the audience's response to the premiere was overwhelmingly positive.

Thank you to everyone who stood in line all day for The Unbelievers! You made it an amazing evening for everyone involved!
— The Unbelievers (@unbelieversfilm) April 30, 2013

Just finished world premiere of @unbelieversfilm . Standing ovation. Was one of the most remarkable and gratifying sights I can remember.
— Lawrence Krauss (@LKrauss1) April 30, 2013

The first review posted at Rotten Tomatoes confirms that the film is not exactly nuanced in its depiction of the relationship between science and religion. The audience reviewer reports: "Very good to see that there are people out there fighting for science, reason and intellect. Some great scenes of Muslim protesters being shouted down and heavily outnumbered."

The trailer also shows a woman in a hijab holding one of Krauss' popular books about science and looking very happy and shaking Krauss' hand. While that image could be understood as an example of the many ways people engage religion and science simultaneously, as this woman is both practicing her religion and engaging science without imploding, Krauss talks over the scene, interpreting it as a moment of liberation for the woman, freeing her from her crazy beliefs. He says "If you confront a belief they have and show them immediately that they can see for themselves that it's crazy, then they remember it."

Or perhaps it's just the condescension that sticks out so clearly in their minds.

The most problematic moment of the trailer, though, is when Krauss leans over a podium and says "There's no one whose views are not subject to question." The very obvious exception to this, given the tenor of the trailer and the rest of the promotional material about The Unbelievers, are those who have their own documentary made about them globetrotting from packed hall to packed hall like heroes to perpetuate a myth about a necessary conflict between science and religion.

The filmmakers could have at least given some space to Neil De´Grasse Tyson, a non-religious scientist who has questioned not only this false opposition but the value of Dawkins' rhetorical style, saying, for instance,

Your commentary had a sharpness of teeth .... Being an educator is not only getting the truth right, but there's got to be an act of persuasion in there as well. Persuasion isn't always, 'here's the facts and either you're an idiot or you're not'. It's, 'here are the facts, and here is a sensitivity to your state of mind.' And it's the facts plus the sensitivity, when convolved together, creates an impact. And I worry your methods, and your -- how articulately barbed you can be, ends up simply being ineffective.

This film at least appears to be untroubled by this or any other serious question, though.

The real question that this documentary raises, though, is why there's such a market for the conflict thesis. Why does it persist in its obfuscations and false oppositions so long after it was demonstrated to be historically bankrupt as a theory and demonstrably empirically false? It's an entirely contingent historical fact that Dawkins and Krauss and others would be so warmly hailed as they preach this message. It's not necessarily the case that it makes sense to score their speaking tour to rock anthems in a documentary that gets a standing ovation in Toronto. It would be good to have a good historical account to explain the accident of time and place that is The Unbelievers.

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Jesus Kommt für eine Neue Welt

Gruppe 91: the art/religious movement/personality cult of the late Herbert Rösler.

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