This is a longer version of the Jay Wexler interview that appeared in the print version of the January Church & State.
Boston University law professor Jay Wexler traveled to communities across America and came back with great material for a book on the Supreme Court and religious liberty law. Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars (Beacon Press, 251 pp.) reports on an array of major church-state conflicts – ranging from Hasidic school districts, Amish dissenters and Santeria rites to prayer and creationism in schools, Ten Commandments displays and school vouchers. It is educational, readable and remarkably funny. If Laurence Tribe and Joan Rivers had a love child, it would be Jay Wexler. We tracked him down to find out more about what he calls his “constitutional law comedy travelogue.”
Q: Most Americans’ eyes glaze over immediately when they hear the terms “Establishment Clause jurisprudence” or “Free Exercise precedent.” Yet you’ve made church-state law really understandable and interesting, not to mention funny. Won’t you get kicked out of the stuffy law professors’ union?
A: I think they would kick me out of their stuffy union, except that they gave me tenure before I wrote the book, so now they’re stuck with me.
Q: You say your book is for “people who want to understand, in plain terms, exactly what the Supreme Court has said about church/state law.” Is it important for Americans to understand what the court has ruled about religious liberty?
A: I think that it’s really important for people to know what the Supreme Court has actually said on lots of hot button topics – I mean how many people who aren’t lawyers really know the reasoning behind Roe v. Wade, just as an example? I actually even think that it would be worth writing a book just explaining exactly and in plain language what the court has said in, say, 20 critical cases in its history. Maybe even do it as a graphic book with cartoons and goofy animals asking questions and whatnot. Anyway, I digress. Yes, I definitely think it’s important to know what the Court has ruled about religious liberty. Lots of people like to talk about “separation of church and state” as though it’s obvious what that means, when of course it isn’t. And if people don’t know what the Supreme Court has said about the issues and why, then how can we discuss whether what the court has said is right or wrong?
Q: Where did you get the idea to visit places around the country where important church-state battles have taken place?
A: I had this idea just to write a book about church-state law for the layperson – not, in other words, just for lawyers or – even worse – just for scholars. But I still figured I’d write the book in my stuffy office just like every other book written by every other law professor in history. But then, totally coincidentally, I was reading for fun a bunch of books by writers who had gone on the road in search of their obsessions. Steve Almond, for instance, wrote a great book about his obsession with candy (it’s called Candyfreak) and then I read Sarah Vowell’s Assassination Vacation, which is about her travels to places having to do with the assassinations of Garfield, Lincoln and McKinley. In the middle of Vowell’s book, I suddenly realized – hey, I have a car! I can do a road trip! Wouldn’t that be fun and interesting? And wouldn’t I learn all sorts of stuff that I wouldn’t learn about sitting in my office? And that’s how I came up with the idea.
Incidentally, I saw Sarah Vowell read not long ago in Boston, and I waited in the long line to get her to sign my copy of The Wordy Shipmates, and when I got there and she signed the book, I gave her a copy of my book and told her that her book had inspired me to write my book. She took the book, but I think she thought I was a little creepy.
Q: What did you learn on your road trip?
A: Oh, goodness. I learned so much. Did you know that when you eat fresh Wisconsin cheese curds, they actually squeak in your mouth? It’s true. But beyond that, I learned a ton about these places where the cases came from and about the people who were involved. I saw the Senate chaplain give his opening prayers four times at the U.S. Senate and learned that those prayers are actually really powerful events (and therefore much more dangerous from a church-state separation perspective than I had thought). I met with Thomas Van Orden, the homeless lawyer who courageously battled to have the Ten Commandments monument on the Texas Capitol lawn removed. I talked to Adin Yutzy, the only living plaintiff from Wisconsin v. Yoder, the most famous free exercise case ever decided. I sat in his living room and he tried to convert me to Christianity! (I’m an atheist, so this was going to be a hard road, but he tried it anyway). Now when I teach my courses and talk about these cases, I have all these details in my head – the machete by the door in the home of a Santeria priest, the animatronic dinosaurs at the Creation Museum outside Cincinnati – that will hopefully help me bring the cases to life for my students and anyone else who wants to listen to me.
Q: What was your favorite stop on the tour?
A: Well, going to Miami in the middle of December is pretty nice. That was a great trip. I met with Ernesto Pichardo, the guy who successfully challenged Hialeah’s anti-Santeria-animal-sacrifice laws in the Supreme Court a long while back. I visited a priest who was officiating at a ceremony in Coral Gables in 2007 when a swarm of police arrived and pulled their guns on everyone. Talking to these guys made me realize that religious persecution is still alive and well in the United States. The Wisconsin trip to visit the Amish was pretty great too. Did I mention that cheese curds squeak if they’re fresh enough?
Q: Who was your favorite interview?
A: I loved talking with Van Orden. We met at the Ten Commandments monument. It was the first time he had been there since the case. There was an orange on top of it, who knows why. Anyway, we talked in the basement of the Capitol building for two hours. He spoke really movingly about why he decided to bring the case and how hard a decision it was and how difficult it was to actually keep doing it without any money or office or resources. He said he kept waiting for Sandra Bullock to show up at his carrel with a bunch of money, but it never happened (she lives in Austin, apparently). Van Orden is not an atheist or anything – he just thinks that the government shouldn’t be able to endorse a particular religious belief in a pluralistic community. His critique of Justice Breyer’s concurring opinion in the case (the one I like to refer to as the “bowl of oatmeal” opinion, because that’s about how clear it was) is just devastating.
Q: You say it’s important to keep church and state separate. Why?
A: There are a lot of reasons. One reason is to protect non-believers and people who believe in minority religions. When the government is intertwined with religion – whether it’s symbolically through putting up religious displays, or economically through funding religious institutions – it is almost always intertwined with and supporting majority religions, which of course hurts minorities.
But this isn’t the only reason to keep church and state separate. Another reason is to protect religion itself. How can it be good for religion to have the government deciding what prayers people should read or how people can worship or whatever?
And then there’s the possible harm to government itself, and to the citizens it governs. Stephen Carter has argued that religion needs space to develop various visions of the good life that are different from those espoused by the state, so that if our leaders become unjust, religion can call them on it. I don’t agree with Carter on a lot of things, but I agree with him on this. I saw it first hand when I was living in Krakow. The Catholic Church was able to help bring about the fall of communism there because it had somehow been allowed to flourish independently of the communist state.
Q: In your opinion, have most of the high court’s church-state rulings been right?
A: Umm, sort of. Actually, I’m not one of those professors who thinks everything the Supreme Court has done is wrong and misses the point and is simplistic, etc. etc. I think that in most of the cases, the Court has struggled pretty thoughtfully with some incredibly hard issues that do not admit of any easy answers. I mean, yes, occasionally there’s a ridiculously bad case like Marsh v. Chambers, which upheld the practice of legislative prayer on the most skimpy of reasoning. And, of course, I think some cases have come out wrong on their specifics without being fundamentally flawed (Van Orden is one of those cases, upholding the Texas Ten Commandments display). I’m not sure about the decision upholding vouchers either.
Q: A lot of Americans think the Supreme Court has kicked prayer (and God) out of the public schools. Is that true?
A: No, no, no, it’s not true. This drives me nuts. Yes, the Court has said that the government, in the form of a teacher or a principal or a school board, cannot be involved in school prayer, like by drafting the prayer or leading the kids in prayer or inviting a rabbi to come pray at graduation. But kids can still pray in school – before school, after school, at lunch, during recess, whenever – so long as they do it voluntarily.
Q: Which decision do you regard as the court’s biggest mistake?
A: Smith is a pretty bad decision, but we’ll get to that in a minute. Marsh on legislative prayer is a very bad case. As I say in the book, it reads as though Justice Burger wrote it in about five minutes. In a country founded on principles of church-state separation, whatever that might mean, it seems really wrongheaded to start legislative sessions, including those at the U.S. Senate and House of Representatives, with a prayer. Can the Senate start its session with a prayer to God? To me, it’s a question that answers itself.
Q: A lot of Religious Right folks worship ultra-conservative Justice Antonin Scalia. Yet he’s the guy who wrote the Smith decision allowing government to easily override the free exercise of religion. What’s that all about?
A: Almost everyone hates this case. It’s a rare case that is criticized by both the Religious Right and the ACLU. Why did Scalia come out this way? There are a few possibilities. For one thing, his opinions certainly make it seem like he has more interest in protecting majority religions than minority ones, and Smith is consistent with that view, since who is going to need free exercise exemptions more, a Christian or someone who wants to eat peyote? Also, Scalia loves rules and hates it when the court has to balance lots of factors – it’s too loosey goosey for him. Smith is anything but loosey goosey. Then too it’s also a drug case, and I doubt Scalia likes drugs very much.
Q: You say the high court may be on the verge of approving massive taxpayer funding for religious schools and other ministries. That’s scary. Is there anything we can do about that?
A: Hope that Obama gets to make three or four more Supreme Court appointments?
Q: Get out your crystal ball. What do you see in the Supreme Court’s future? Are you worried that the justices are going to knock down the church-state wall?
A: I’m worried anytime the court gets a church-state case. I think on the Free Exercise Clause side, though, things can only get better, and if Justice Alito has his say, there’s a chance they will. He might be the most Free-Exercise-friendly judge in the country. On the Establishment side, I really worry about the future of the endorsement test for evaluating religious symbols and displays. It’s a test that people like to make fun of but that I think gets at what’s really important in these cases. The government shouldn’t be able to send a message endorsing any particular religion or religion over non-religion generally. The test is hanging on by a thread with Justice O’Connor leaving, and I just hope we get a few more liberal justices before the court hears another one of these cases.
Q: There’s a cross-on-public-lands at the high court now. Care to make a prediction on how it’s going to turn out?
A: It sounded from oral argument that the justices aren’t going to make any broad rulings or pronouncements. There’s a point in the case where you hear Justice Breyer realizing that in fact that isn’t any interesting issue before the court at all – it’s just whether the government, by selling the land where the cross is located to a private party – has violated the precise terms of the injunction that was issued by the district court. Nobody but Justice Scalia seemed too interested in reaching the merits of the case. Of course, there was the incredible back and forth between Peter Eliasberg, the ACLU lawyer challenging the cross, and Scalia over whether the cross was intended to honor Jews and Muslims as well as Christians. Eliasberg at one point says the best line in recent oral argument history: “I have been in Jewish cemeteries. There is never a cross on the tombstone of a Jew.” Now, I was fortunate enough to get to do a moot court at Harvard to help Eliasberg prepare for oral argument, but while I would like to take some credit for preparing him to answer Scalia’s “Is the cross an inclusive symbol?” query, such a question had simply never occurred to me. How could it possibly have occurred to anyone?
Q: Are there any other points you’d like to make?
A: Only that I hope everyone will go to www.holyhullabaloos.com and listen to the theme song that Mike Newdow wrote and sang for the book.
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