The Black Religious Liberty Curriculum Expands the Conversation on “Religious Freedom”

Despite a high level of religious practice, Black communities—and mentions of race altogether—are often ignored in both academic and media analysis of religious liberty law. In an effort to expand, reframe, and diversify the public and academic conversations on “religious liberty,” the Law, Rights, and Religion Project released the “Black Religious Liberty Curriculum” last fall. An open-access video series, the curriculum features twenty-four interdisciplinary scholars in conversation on race, religion, and the law, covering topics ranging from the Black Power era to national security to sexuality, and is accompanied by a discussion guide. By examining religious liberty through the lived experiences of Black religious communities, the video curriculum helps fill a critical analytical gap at a time when both religious freedom and ethnic studies are under attack.

A primary reason for the absence of racial analysis in the religion law field is that, at least in law schools, curricula, textbooks, and scholarship focus heavily on Supreme Court doctrine. Black people have been, in turn, almost entirely absent from (or invisible to) Supreme Court opinions on religious freedom. Race has gone unmentioned even in Supreme Court religious liberty cases brought explicitly to mitigate anti-Black discrimination—such as challenges to public funding of private schools. This race-blind approach hardly means that Black communities have been irrelevant to religious liberty, as scholars including Sabrina E. Dent, Corey D. B. Walker, and Danielle N. Boaz have shown. Indeed, a closer analysis of Black religious and spiritual practices within religion law scholarship would teach us much about the limits and possibilities of religious freedom.

There are numerous, intersecting reasons why, despite the fact that some of the most grotesque religious liberty violations in U.S. history have targeted Black people, these abuses rarely, if ever, resulted in Supreme Court opinions. For much of U.S. history, there was simply no effective legal mechanism to protect Black people’s religious freedom. Enslaved people, of course, had no recourse to challenge laws forbidding them to gather for worship, preach without a license, learn to read the Bible, attend worship services conducted by Black preachers, or conduct funeral and burial rites.

Even after emancipation, there were both legal and practical reasons Black people could not challenge religious freedom violations—for example, laws that prohibited Black people from entering white places of worship or the arrests of “Voodoo” practitioners analyzed by historian Kodi Roberts.

For one, the Free Exercise Clause of the federal Constitution at this time prohibited only Congress, not state governments, from burdening religious liberty. While many state constitutions also protected religious freedom, Black people in the South could gain little relief before state courts that were part and parcel of the Jim Crow system. Moreover, the threat of violence against Black churches and religious leaders was a constant presence.

Religious discrimination against Black communities was not limited to the South, however. In the north, as discussed in Judith Weisenfeld’s essential book New World A-Coming: Black Religion and Racial Identity during the Great Migration, Black-led new religious movements of the 1920s and 30s like the Moorish Science Temple, Father Divine Peace Mission, and Nation of Islam (NOI) faced routine arrests, raids of houses of worship and harassment by local police and surveillance by federal agencies. The city of Detroit created a special police unit specifically to disband the NOI, then called the Allah Temple of Islam, in its early days. While members of these groups occasionally brought—  and, in some cases, even won — religious liberty claims, these were in state courts and are little-known today. Moreover, even successful litigation failed, in many cases, to protect these communities from continued persecution.

Beginning in the 1940s, the Supreme Court ruled that the First Amendment protected against religious freedom violations perpetrated by state and local actors, opening access to federal courts. Over the following decades, Jim Crow began to be dismantled, and Black people gained new legal protections. Despite these important changes, Black religious practitioners still faced religious freedom infringements from both local institutions, including state legislatures, police departments, and prisons, and from federal agencies like the IRS and FBI. In the Civil Rights era, many notable Black religious groups and leaders, including the Southern Christian Leadership Conference, were subject to government surveillance and disruption. Lerone A. Martin uncovered how FBI Director J. Edgar Hoover even collaborated with a conservative Black preacher in an attempt to undermine Martin Luther King, Jr. on theological grounds.

The NOI was especially targeted. In multiple cities, NOI members experienced rampant police brutality, placement on federal detention lists, and the planting of anti-NOI stories in the media by law enforcement. In 1961, in response to the NOI founding a farm in Alabama, the state legislature passed a law requiring Muslims (along with Communists and Nazis) to register with the state department of safety. The following year, a Congressmember submitted a resolution calling for congressional investigation of the Nation. In 1963, twelve members were terminated from the civil service because of their religion.

Leader of the Nation of Islam, Elijah Muhammad, speaks to a crowd at the Black Muslims annual meeting held in the Coliseum at 15th and Wabash Avenue, Chicago, Illinois. | ST-19031787-0041, Chicago Sun-Times collection, Chicago History Museum

Despite this history, religious liberty rights were not—as Tisa Wenger has thoughtfully explored—a major focus of litigation by Black civil rights groups. There are, of course, exceptions. In 1948, nearly two decades before Loving v. Virginia struck down anti-miscegenation statutes nationwide, an interracial Catholic couple in Perez v. Sharp argued that California’s anti-miscegenation law violated their religious freedom. The case was decided only on Equal Protection grounds, however, and no religion claims were brought in Loving. In 1956, Martin Luther King, Jr.’s lawyers initially included a Free Exercise Clause defense in Alabama v. King after he was arrested during the =Montgomery bus boycott. The lawyers don’t appear to have pursued the argument during litigation. These cases were exceptionally rare; while segregation limited religious freedom, and many civil rights leaders were motivated by faith, the Free Exercise Clause was largely overlooked in civil rights litigation.

NOI members did initially file lawsuits challenging police harassment. However, the failure of even winning suits to create meaningful protections–as Malachi D. Crawford put it —  the “disconnect between the civil liberties won by NOI members in court and the ability of NOI members to actually enjoy and practice these freedoms in their everyday lives” — led to changes in strategy. This disconnect between court opinions and real-world experience is still relevant today. A particularly horrific example is the story of Damon Landor. A Rastafarian man incarcerated in Louisiana, in 2020 Landor was held down by prison guards and had his dreadlocks forcibly shaved–while he was holding a copy of a court opinion stating that Rastafarians in Louisiana have the right to wear dreadlocks while incarcerated.

Other religious liberty cases brought by Black claimants–both historical and contemporary–have been quickly dismissed or otherwise failed to result in notable religious freedom decisions. Many Black men, for instance, tried and failed to gain religious exemptions from military service. While protections for conscientious objection to war has been one of the most longstanding religious protections, Black people have not benefited equally from these provisions. Leaders of the Church of God in Christ were put on trial during WWI for conspiring to hinder the draft because of their objection to participating in war. During WWII, more than ninety percent of draft-age NOI males were incarcerated as draft resisters. During the Vietnam War, as Charles McCrary has discussed, draft boards were overwhelmingly white and disproportionately refused exemptions to Black applicants. Perhaps the most famous Black conscientious objector, Muhammad Ali, was initially rejected by a draft board. This decision was later reversed by the Supreme Court on narrow, technical grounds; as the Court’s decision said little of substance regarding religious liberty, it has not been adopted into the religion law canon, as have other draft objector cases brought by white claimants.

Muhammad Ali leaves the Federal Court Building after being convicted of refusing to be inducted into the military, June 20, 1967. Source: AP

The enormous number of religious liberty claims brought by people in prison are, for the most part, quickly dismissed for procedural reasons, since most are brought without legal counsel. One Supreme Court case that successfully secured religious freedom for incarcerated individuals in 1964—Cooper v. Pate—was brought by an NOI member. While it was the first opinion granting people in state prisons standing to sue in federal courts for rights violations, the Court’s brief opinion barely mentions religious liberty, does not note the plaintiff’s racial or religious identity, and is not typically taught in religion law classes.

Finally, there have been religious liberty cases brought by Black claimants that are well known, but where important racial context has been erased in courts’ opinions and law school classrooms. Most notable is Lemon v. Kurtzman—a challenge to the public funding of private religious schools filed by Black civil rights leader Alton Lemon. This case shaped Establishment Clause jurisprudence for over fifty years and is essential reading in any religion law course. However, Lemon’s argument that funding religious schools “promotes the segregation of races ‘with the ultimate result of promoting two school systems…a public school system predominantly black, poor and inferior and a private, subsidized school system predominantly white, affluent and superior,” was mentioned only in a footnote in one concurrence to the opinion, and otherwise ignored. Law students who read Lemon are unlikely to learn of the case’s racial justice motive or identity of the named plaintiff.

Another example is Africa v. Commonwealth of Pennsylvania, in which an appellate court held that the majority-Black group MOVE was not a religion. The court claimed MOVE — whose members were repeatedly arrested and whose headquarters was eventually bombed, resulting in the deaths of eleven people including five children — was instead a “philosophy.” The legal test developed in Africa is still the standard for defining “religion” in the Third Circuit, and while it is sometimes taught, neither the opinion nor many casebooks discuss the bombing or other racialized aspects of the case. The extremely complicated racial dynamics within the 1992 case Church of Lukumi Babalu Aye v. City of Hialeah — brought by white practitioners of an Africana religion who challenged a ban on animal sacrifice — were also not discussed in the Court’s opinion. And race was absent from, though arguably relevant to, two 2019 cases in which the Court stayed the execution of a white Buddhist who was denied access to his spiritual advisor during execution shortly after refusing to do the same for a Black Muslim man who requested his imam’s presence.

via the Magic in the United States Podcast

There are many reasons for the relative absence of Black religious communities in Supreme Court religious liberty doctrine, even while Black Americans display the highest rates of religious practice and experienced a long history of religious persecution. During the period of the most intense and explicit burdens on Black religious practice, federal courts were not open to these challenges. Even as this changed, Black religious and civic groups did not generally turn to religious liberty protections to advance their interests, focusing instead on equal protection and other arguments. Many claims that were brought did not go far or did not result in decisions that discussed religious freedom. And the Supreme Court sometimes ignored race even in religious liberty claims brought, in part, to secure racial equality.

Religious liberty today is often depicted as a facet of the culture war, with a narrow focus on issues of sexuality and reproduction. This is a perhaps unsurprising response to years of massive litigation, legislative, and media campaigns waged by conservative Christian nonprofits which have focused overwhelmingly on these issues. However, a focus on Black religious communities shows that religious liberty doctrine is not merely an extension of the culture war—rather, it is a reflection of our political commitments writ large. The religious liberty rights of incarcerated people are sidelined, ignored, or dismissed for procedural reasons. While appeals to “security” have sanctioned even sweeping violations of religious freedom, the state’s interest in limiting discrimination has been treated (in practice, if not explicitly) as less compelling. The impact of private violence on particular religious communities is considered outside the purview of the Constitution. And even where religious liberty claims succeed, they do not always result in meaningful change for some communities, or merit discussion in classrooms.

For those looking to incorporate new understandings of religious liberty in their teaching—including scholars of religious studies, law, history, African American studies, or theology—the Black Religious Liberty Curriculum can supplement existing syllabi, or even establish the backbone of a new course. Professors have assigned individual videos to complement reading or as extra credit. At least one new class on race and religious freedom is being developed around the curriculum as a whole. Students (or even faith groups) could also tackle the videos by themselves or in peer groups, using the discussion guide.

A focus on Black religious liberty acknowledges the multi-dimensional aspects of Black lives and can therefore ensure that the full humanity of Black people is valued and protected. Moreover, looking beyond the Supreme Court to examine how the law has shaped the daily spiritual lives of Black Americans offers a clearer picture of the state of religious liberty in the U.S.—both its promises and limitations. At a time when “religious freedom” seems almost irredeemably captured, the Black Religious Liberty Curriculum offers new perspectives on what religious freedom means, whom it protects, and how religious pluralism and racial justice are inextricably linked.