Tuesday, August 14, 2007

Rostron on Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment

Allen K. Rostron, University of Missouri, Kansas City, School of Law, has just posted a review essay, Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment. The essay takes up Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution. While the book appeared in 2000, and the essay in 2004 (Quinnipiac Law Review), the essay makes a point that will be of interest beyond its examination of Peters' book. A particularly interesting criticism, which we could think of in the context of litigation involving other groups, is that Peters addresses the impact of the Witnesses on the law, but does not adequately turn his lens around, and explore the way involvement in litigation affected the Witnesses. Here's Rostron's abstract:
In 2002, for the first time in more than 20 years, the Supreme Court of the United States decided a case involving the First Amendment rights of Jehovah's Witnesses. The Court ruled that Witnesses cannot be required to give their names to local government authorities in order to obtain permits before going door-to-door to distribute their publications and preach their religious message.
While the amount of new law being generated by the religion's followers has slowed, scholars have finally begun in recent years to give significant attention to the legal history of the Jehovah's Witnesses, and, in particular, to their phenomenal wave of constitutional litigation. Shawn Francis Peters' Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution is the most recent, and broadest, historical account of the Witnesses' legal activities. Peters focuses on the period of the late 1930s through the mid-1940s, a time when persecution of the Witnesses was at its peak and the Supreme Court decided a flurry of major First Amendment cases involving the Witnesses.
Peters' book shares a fundamental flaw with previous accounts of the legal history of the Jehovah's Witnesses. He has chosen to passionately and unequivocally support the Witnesses' side of each and every one of the legal battles he describes. In Peters' hands, every episode in the Witnesses' legal struggles becomes a story about how an extraordinarily brave and dedicated Witness challenged an indefensible rule of law, and how every case ultimately resulted in either a watershed victory for liberty, or a disheartening judicial failure to protect our freedom. This Review considers the problems that arise in trying to force the history of the Jehovah's Witnesses into a uniform narrative of courageous opposition to unjust legal restrictions and prejudice. This form of legal history idealizes and oversimplifies the events underlying the cases and the issues they raise.
Part I of this Review describes Peters' approach, and how he consistently frames the legal history of the Witnesses as a confrontation between righteous dedication and legal harassment. Part II suggests that Peters and other historians have been so determined to applaud the Witnesses' effect on the law that they have overlooked the equally significant question of how participating in these legal activities affected the Witnesses. Part III closely examines one particular case in which the Supreme Court considered the First Amendment rights of Jehovah's Witnesses, in order to suggest how Peters' approach to the legal history of the Witnesses can distort representation of the facts underlying cases as well as analysis of the meaning and significance of the cases as legal precedent. Finally, Part IV suggests that Peters, like others, has also neglected the opportunity to gain a deeper understanding of the Witnesses' legal history through comparison of the Witnesses to other religious groups.

2 comments:

tom sheepandgoats said...

"they have overlooked the equally significant question of how participating in these legal activities affected the Witnesses. "

It taught them they always need to have a lot of lawyers on tap, I know that. Alas, though perhaps not for you, :-) lawyers are a mainstay of any organization these days.

Yours is an interesting blog. I'm curious what your thoughts are. It is certainly true that many Witness victories were unaccompanied by genuine admiration for their specific cause. It was simply recognized that the constitution allows them to do, say, not do, etc, whatever they went to court for.

Victor Blackwell's book (have you heard of it) is in the mold of Peters (whom I have not read, and did not know about) He was one of the JW attorneys in some of their cases. Not surprisingly, he applauds their cause. Is Peters a JW, do you know?

Blackwell's book: "O'er the Ramparts They Watched" (1976) I guess the title represents his feelings.

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