Document Type

Article

Abstract

Santayana once said that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid future mistakes by paying better attention to past ones. Perhaps this is so. Or perhaps it is as George Bernard Shaw once said-that we learn from history only that we learn nothing from history. Yet one thing is surely clear. To the extent that modern injustices have identifiable historical antecedents, we rightly stand doubly condemned for them.

This Essay looks at four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse-one is a Wiccan, one is a Muslim, one is an evangelical Protestant, and one is an atheist. Unsurprisingly, their claims find support in very different political communities. But the plaintiffs in these cases all have certain things in common. They are all, in their own ways, religious minorities. All of their legal cases were ultimately lost. And, most importantly for the purposes of this Essay, each of their cases connects deeply with the nineteenth-century history of Catholicism in this country.

In various ways, Catholics of the nineteenth century were mistreated by the Protestant majority. The injustices they faced were sanctioned by courts as well as legislatures, and legal rules were created to render their injuries both judicially non-cognizable and socially invisible. These four modern plaintiffs are, in some ways, latter-day Catholics. They suffer some of the same injuries; indeed, they are sometimes inhibited by the very same legal doctrines created to repress the Catholic minority over a century ago. One can think of these four plaintiffs as the new Catholics-or, perhaps more accurately, as the new victims of the old anti-Catholicism. As we struggle with our twenty-first century challenges of religious pluralism, it helps to realize how much our struggles have in common with earlier ones. Perhaps, armed with this knowledge, we can do a bit better now than our forefathers did then.

Disciplines

First Amendment | Legal History | Religion Law | Supreme Court of the United States

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