Righting the relationship between race and religion in law

Oxford Journal of Legal Studies

Volumn 31, Issue 3, 2011, Pages 583-602

  Stolzenberg, Nomi Maya ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

Author keywords

Discrimination; Race; Religion; Secularization

Indexed keywords

EID: 80052467584     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqr014     Document Type: Article

References (64)

1. 784 F.2d 505, 514 (1986) (appellate court opinion); see also 523
2. 481 US 615 (1987). The Civil Rights Act of 1866, enacted after the Civil War, includes both Section 1981, which provides that 'All persons born within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens' and Section 1982, which provides that 'All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property'. Section 1981 is the section of the Civil Rights Act relied upon in the Al-Khazraji case. Section 1982 is the section of the statute relied upon in Shaare Tefila. 42 USC ss 1981 and 1982.
3. 785 F 2d 523 (4th Cir 1986).
4. 784 F 2d 505, 517-18 (3d Cir 1986), reversing 523 F Supp 386 as to the Section 1981 claim.
5. Al-Khazraji 481 US 604, 613 (1987)
6. Al-Khazraji (n 5) 613; Shaare Tefila (n 2) 618
7. To clarify, there have been numerous decisions adjudicating 'racially ambiguous' parties' racial identities
8. Ariela Gross's, What Blood Won't Tell (Harvard University Press, 2008) is the definitive treatment
9. But '[w]hile state courts frequently litigated individuals' racial identity, the US Supreme Court rarely did', Gross, 211, and few if any of these decisions addressed the role of religion in racial identity, or developed a general theory about the relationship between religion and race
10. As a scholar of American law, I do not have the knowledge to comment on English or European law, so my remarks are confined to the law in the US, although Darian-Smith's book undertakes to provide a synthetic account of 'Anglo-American law', comprising developments in England and Europe as well as America
11. LEXIS and Westlaw searches reveal a paucity of opinions considering whether religious discrimination violates the Equal Protection Clause or statutory laws against discrimination, and fewer cases still in which religion is compared or linked to race. Likewise very few cases litigated under the laws protecting religious freedom involve race in any explicit way. One notable exception is Bob Jones University v US (1983) 461 US 574 in which the Supreme Court upheld the constitutionality of the IRS's decision to withhold the tax-exempt status usually granted to religious institutions to a Christian university that imposed rules forbidding interracial dating. Even here, though, there was no analysis of how race and religion interrelate.
12. The work that launched the theory of intersectionality in discrimination scholarship was Kimberly W Crenshaw, 'Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color' (1991) 43 Stan L Rev 1241. The literature spawned by this work generally pays relatively little attention to religion as a category of identity compared to race, gender and sexual orientation, but it nonetheless paves the way for thinking about how religion and other categories of identity interact.
13. My thanks to my colleague, Stephen Rich, for helping me to clarify this point
14. s 1982 of the Civil Rights Act of 1866, the law that the synagogue relied on, merely says that all citizens have the same property rights 'as white citizens,' which makes race, and race alone, salient. See 42 USC s 1982 (n 2).
15. 499 F Supp 980 (1980), fn 1.
16. RRR 21-51
17. RRR 52-114
18. RRR 117-47
19. RRR 180-208
20. RRR 148-79
21. RRR 211-47
22. The literature on race and law is too vast to enumerate
23. On colonialism, see, eg Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge University Press, 2002)
24. See n 41
25. RRR 17, fn 2
26. The debate over whether a right to accommodation is constitutionally compelled has spawned an extensive literature
27. For a small sample, see Michael W. McConnell, 'Accommodation of Religion: An Update and a Response to the Critics' (1992) 60 Geo Wash L Rev 685.
28. Mark Tushnet, 'The Emerging Principle of Accommodation' (1987-88) 76 Georgetown L Rev 1691
29. Wilder (n 13) 848 F.2d 1338, 1344.
30. 406 US 205 (1972)
31. See Ronald Garet, 'Communality and Existence: The Rights of Groups' (1982-83) 56 S Cal L Rev 1001
32. On the treatment of these groups as races, see eg Leon Paliakov, The Aryan Myth: A History of Racist and Nationalist Ideas in Europe (Basic Books, 1974)
33. Ivan Hannaford, Race: The History of an Idea in the West (Johns Hopkins University Press, 1996)
34. George Frederickson, Racism: A Short History (Princeton University Press, 2002)
35. See John Rawls, Political Liberalism (Princeton University Press, 2002)
36. RRR 3 (citing P W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press 1999) 36)
37. The assertion that Turkey is not part of Europe is of course itself a deeply contested ideological position that reflects the larger contestation over national, racial and religious identity boundaries that Darian-Smith seeks to relate
38. On the former, see Gavin I Langmuir, Toward a Definition of Anti-Semitism (University of California Press, 1990)
39. See Gross (n 7)
40. See Gross (n 7)
41. The current debate over stereotypes attributed to Asians spawned by the controversy over 'the Tiger Mother' is an interesting example
42. See Amy Chua, Battle Hymn of the Tiger Mother (Penguin, 2011)
43. Wesley Yang, 'Paper Tigers' New York Magazine (8 May 2011)
44. In addition to the works cited by Darian-Smith, see Jonathan Schorsch, 'Blacks, Jews and the Racial Imagination in the Writings of Sephardim in the Long Seventeenth Century' (2005) 19 Jewish Hist 109
45. John Efron, Defenders of the Race: Jewish Doctors and Race Science in Fin-de-Siecle Europe (Johns Hopkins University Press, 1994)
46. The classic work on European Orientalism is, of course, Edward W Said, Orientalism (Vintage, 1979)
47. See, eg, Herbert S Klein, The Atlantic Slave Trade (Cambridge University Press, 1999)
48. David Eltis, The Rise of African Slavery in the Americas (Cambridge University Press, 2000)
49. Jose Casanova, Public Religions in the Modern World (University of Chicago, 1994)
50. Talal Asad, Formations of the Secular (Stanford University Press, 2003)
51. Charles Taylor, A Secular Age (Harvard, 2007)
52. Mark Lilla, The Stillborn God (Vintage Books, 2007)
53. See also Peter Berger (ed), The Desecularization of the World: Resurgent Religion and World Politics (The Ethics and Public Policy Center and WM. B. Eerdmans Publishing Co., 1999).
54. Ronald Ingelhart and Pippa Norris, Sacred and Secular: Religion and Politics Worldwide (Cambridge University Press, 2004)
55. Asad (n 41) 26
56. See Nomi M Stolzenberg, 'The Profanity of Law', in Austin Sarat and others (eds), The Law and the Sacred (Stanford University Press, 2007)
57. Nomi M Stolzenberg, 'Theses on Secularism' (2010) 47 San Diego L Rev 1041
58. Taylor (n 41) 29.