'Racial and Religious Democracy': Identity and Equality at Mid-Century
72 Pages Posted: 24 Aug 2019
Date Written: August 22, 2019
In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of how race and religion coexist in both discriminators and victims of prejudice. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality. At times, the correlation between race and religion has also permitted religious groups to shield their deliberate racial discrimination.
Drawing from extensive archival research, this Article unearths forgotten yet formative connections between racial and religious antidiscrimination efforts, at the local through federal levels, from the 1930s through 1950s. To examine these links, this account centers on the New York City family court, an unusually influential and high-profile trial court. In the 1930s, the NYC family court welcomed the most diverse bench ever assembled in the United States to that date (including women and men, blacks and whites, and Protestants, Catholics, and Jews), a development celebrated as bolstering American democracy and countering Nazi bigotry abroad. Several judges held leadership positions in the National Association for the Advancement of Colored People and the American Jewish Congress, path-breaking civil rights organizations with legal arms headquartered in NYC. The family court served as a testing ground for identity-related legal arguments that later rose to the national level because of its judges’ views and the fact that it merged two antidiscrimination focal points: public institutions’ treatment of children and application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion. By the 1940s, a coalition of black and Jewish judges regarded both types of identity-matching as unlawful discrimination. These judges successfully fought against their white Christian colleagues to end racial-matching, but their challenge to religious-matching proved more politically and legally difficult. What some perceived as religion-based discrimination and a violation of the separation of church and state, others understood as legitimate protections for religious identity.
Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases — such as McCollum v. Board, 333 U.S. 202 (1948) and Brown v. Board, 347 U.S. 483 (1954) — the family court judges and their allies both anticipated and influenced doctrine and norms that remain with us today. This history complicates and raises important questions about ongoing issues ranging from the significance of judges’ racial and religious backgrounds to the scope of religious groups’ involvement in child welfare services and penal contexts. The Article also calls for additional studies that free racial civil rights and First Amendment religion scholarship from their current silos in order to better understand the concurrent development of these crucial and contested areas of law.
Keywords: constitutional law, legal history, law and religion, civil rights, probation, family law, juvenile delinquency, children and the law, judges, family courts
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