A fascinating student note from the Minnesota Law Review, not so much for its subject matter as for how it came to be published.
Here's what the note is about. From its introduction (paragraph breaks added):
This Note argues that because law is limited to placing external constraints on human behavior, religion, through its capacity to internally constrain human behavior, acts as an indispensable assistant to the law in preserving public order.Part I details how, in recent decisions, the Supreme Court has used history to interpret the Establishment Clause. Part II argues that the Court's reliance on history is misplaced because the historical evidence of the clause's meaning is inconclusive.
Part III provides an alternative approach to interpreting the Establishment Clause that focuses on the ability of religion to constrain human behavior. This Note concludes that while it is sound public policy to support religion, religion is only effective insofar as it instills faith within its followers. Because no religion appeals to all men, the government should impartially promote religious worship and instruction.
You might notice, if you read the article, that it doesn't refer to any cases — or anything else — more recent than 1949. It turns out there's a reason for this. Here, according to the SSRN abstract, is the backstory (you can find a more complete story, in the author's own words, on the website itself):
Mr. Stiegler served in the Second World War and then returned home to Minnesota to attend law school. He wrote this article while a student-member of the Minnesota Law Review during the 1948-49 school year. While reviewing Mr. Stiegler's first draft, the Note Editor rose, slapped his hand on the table proclaiming: I am Catholic. It is the one true religion. This Note will never be published. Mr. Stiegler's name was subsequently removed from the masthead of the Minnesota Law Review and he was denied credit for the activity for his last year of law school.(Note: The rest of the SSRN abstract doesn't summarize the article very well, which is why I gave the summary from the Note itself.)For fifty-seven years the manuscript lay hidden in his desk. In March 2007, Mr. Stiegler contacted the current leadership of the Minnesota Law Review, and they decided to bring Mr. Stiegler's article to the public by editing the work and then publishing it on SSRN and on the webpage of the Minnesota Law Review. Mr. Stiegler's ideas and arguments are still relevant today.
Perhaps government support of Islam is not a good example since the governments involved, such as the City of Minneapolis, support only Islam and not other religions.
Voltaire, enemy of arbitrary power tho he was, could little imagine the scope of the modern state's police powers; he might think that God was no longer so necessary a concept.
Oh--and even though it has only symbolic importance at this point, the University of Minnesota should also correct its records to give Mr. Stiegler academic credit for his law review service.
Not attacking, just curious.
Mr. Wrestling II -- love hte GCW reference. I was a big fan.
It is well known that Catholics always rise prior to slapping themselves on the head. Yup, that sounds like it was done in front of witnesses who can testify to its veracity half a century later.
For what it's worth, I've seen Mr. Stiegler tell his story firsthand. At several points, he became quite emotional and broke into tears. While I'm not aware of any independent confirmation of his story, Mr. Stiegler stuck me as a very genuine person. That was my impression, anyway.
Both groups, even today, imagine themselves to have been great victims of prejudice and discrimination in their earlier stages as immigrants, even though their victimization paled in comparison to what was meted out to blacks, and both groups are quite successful today. And there was a lack of solidarity on the whole, even though both groups themselves were viewed suspiciously by older WASP stock.
So, this story may be true, and it may be exaggerated, but I don't find it beyond the realm of believability.
From my meticulous study of the views of the men who wrote the religion clauses and other cognate documents (Washington, Adams, Jefferson, Madison, Franklin, et al.), I think they would have had no problem with government endorsing "religion" over "non-religion" (provided govt. still respected the rights of atheists, i.e., didn't pick their pockets or break their legs).
However, to them (and to us today) "religion" is a fairly broad concept. They believed Christianity, Judaism, Deism, Unitarianism, Islam, Hinduism, pagan Greco-Romanism, and Native American Spirituality were all "sound" religions. As best as I can tell, all sound religion required was belief in an overriding Providence who will ultimately reward good and punish evil.
I do find it refreshing to agree with Steve, since we often disagree on substantive issues. A wrong occurred almost 60 years ago--and to their credit, the current Minnesota Law Review editors are doing what they can to right that wrong.
With respect to the credit question, I, too, received academic credit for my law review time (either 1/2 or 1 credit a semester--I forget which-- pass/fail) which barely compensated for the long hours I spent both as a 2L doing fact-checking and other fun grunt work and as a 3L when I was an editor.
I laughed at Sasha's comments too--witty and to the point.
What they are really saying is "but for my fear of hell and/or desire for heaven, I would have no qualms about killing you and stealing from you." I'm glad such people have their religion, and woe be it for me to take it away from them.
On another note, I can't believe, even in 1949, that a law professor could get away with punishing a student for not being catholic.
What is worse, to me, is that some people feel that way about the government. If the government says its bad, its bad, and if the government says its okay, then no matter how bad it is, its okay. Check out the comments thread here where one guy says that if rape were legal he'd be doing it all day. He says it without shame. Then, others defend him even after the full implications of the statement have been pointed out. And it all goes down without shock or uproar, I guess because its perfectly normal to think that is the state sanctions it - be it theft, murder or rape - then it must be okay. Is that how we are raising our children?
Other than sentimentality, though, I don't see what makes human beings so special that I should not do whatever I want whenever I want, so long as it is not dishonorable to me, without some kind of divine sanction in the afterlife. Isn't this the meaning of life in the pagan world. But perhaps you can explain why. And yes I've read Plato, Aristotle, Kant, et alia.
Liberty: I agree, and the converse is that when the government says something is "bad" some people will not only never question it, but will refuse to accept the fact that the government may be wrong. See, e.g., the war on drugs (drugs are not evil, nor do they make people do evil things via voodoo pharmacology).
Some people simply cannot function without authority telling them what is right, wrong, good, bad. They'll always follow and never question. The other 5% of us look on with horror and disgust.
Frankly, I think that's the real story here. While I'm sure all the people who were "powers to be" in the school in 1950 are now deceased, it would be interesting to see if any formal complaints, appeals, decisions were written up. If the law school ignored Steigler's complaints, it in effect officially sanctioned the behavior of the student note editor. That's just evil.
Sure, this is a reprehensible case by the author's statement, but the Notes Editor himself probably had his own story, so it may have looked more like a tough case of he said/he said at the time. Of course, all of this is just speculation -- I have no idea what was going on.
Also, the story is incredible. As Garrison K has told us, he must have said, "I am Lutheran . . ." Of course, Bloomington is close to St Paul, a hotbed of Papists.
Either the Minnesota Law Review forced this form onto it (ick) or legal academic writing exhibits a shocking amount of archaism in its forms.
Note that he slapped the table and not (being a non-Muslim) his head.
I am the Editor-in-Chief of current volume of the Minnesota Law Review and I write to validate Mr. Stiegler's story. Indeed, in a meeting with Mr. Stiegler and my predecessor, I found that the story (outlined above) is even more fascinating than it appears. Mr. Stiegler did not want vindication. Mr. Stiegler did not want revenge. Mr. Stiegler just believed in his article. As he went through a transition period in his life, he was compelled to take one last shot at getting the article published. Mr. Stiegler is a fascinating individual and I encourage you, if you have not had the chance, to read his article.
As an aside, I will see what I can do to update/revise the current abstract on SSRN.
Kevin O'Riordan
BruceM -
By the articles of Christian faith, a person can not only rape, murder, etc. without going to hell, they can do it and go to heaven if they still repent and come to Jesus before death. They have NO MORE incentive to obey moral laws that Atheists do and perhaps have even less since to many sects "Jesus" acts like a giant faith-based "sin all you want and get out of hell free" card.
The next time a Christian points this out, try this - "Given that by your own beliefs you can do all kinds of horrible things and still go to heaven, why don't you do them? When you understand the answer to that question, you will also understand why I dont do them either".