Elizabeth Katz (Washington University in St. Louis) has posted "'Racial and Religious Democracy': Identity and Equality in Midcentury Courts." The article appears in Volume 72 of the Stanford Law Review. Here's the abstract:
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 perpetrators and victims of discrimination. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality.
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 the 1950s. To examine these links, this account centers on the Domestic Relations Court of the City of New York, an unusually influential and high-profile trial court. In the 1930s, the Domestic Relations Court welcomed the most diverse bench ever assembled in the United States by the time (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, pathbreaking civil rights organizations with legal arms headquartered in New York City.
The city's 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 the application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion, an approach one prominent commenter argued should be eliminated in order to promote "racial and religious democracy." By the 1940s, a coalition of black and Jewish judges regarded both types of identity matching as unlawful segregation. These judges successfully fought against their white Christian colleagues to end race matching, but their challenge to religion matching proved more difficult, both legally and politically. While the opponents of religion matching perceived the practice to be discriminatory and a violation of the separation of church and state, its supporters saw it as a lawful and beneficial protection for religious identity.
Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases—such as McCollum v. Board of Education and Brown v. Board Education—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. This 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.
Read on here.
-- Karen Tani