Even Religious Freedom Victories Harbor Defeats

The State of Alabama recently executed a Muslim man after denying him the right to have the religious counselor of his choice, an imam, present at his death.

Alabama routinely allows a Christian chaplain to attend death row inmates at the moment of their executions. But in Domineque Ray’s case, his request to have an imam by his side as he died was rejected at the state level and then rejected again in a terse 5–4 decision by the Supreme Court (Dunn v. Ray). In the words of Justice Elena Kagan’s fiercely worded dissent, “to justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal.”

Kagan’s exasperation is understandable because the case is preposterous. Ray did not contest his sentence. He merely asked for the bare minimum of time for his chosen spiritual advisor to receive the training necessary to formally attend at his death.

In the wake of Ray’s hasty execution, religious freedom advocates have followed Kagan in arguing that the decision amounts to the establishment of Christianity as a state religion. I agree with the critics. But the Court’s ruling does not just inscribe Christian majoritarianism into law. It also continues a longstanding practice of rendering America’s religious minorities invisible to the law. The anniversary of an earlier Supreme Court case involving Japanese American Buddhists aptly demonstrates this point.

On February 21, 1927, the Supreme Court affirmed Japanese Americans’ right to educate their children in extracurricular Japanese language schools (Farrington v. Tokushige), in addition to the children’s attendance at the (English-speaking) locally operated public schools. Compared to the infamous 1944 Korematsu v. United States decision that found the wartime incarceration of Japanese Americans constitutional, the relatively obscure February 1927 decision seems like a feel-good legal win for a wrongly vilified and widely misunderstood ethnic minority. But behind this apparent victory lies a complicated story regarding American religious freedom, Buddhism, and debates over immigration that sound eerily similar to contemporary controversies about travel bans, border walls, and executive orders.

Here is that background.

In the late nineteenth and early twentieth centuries, a huge number of Japanese laborers emigrated to Hawai`i. Japanese workers staffed the lucrative sugar industry there, earning paltry wages that allowed white sugar plantation owners to pocket enormous profits. Although a 1907 “Gentlemen’s Agreement” between the United States and Japan had curbed Japanese immigration as a way of assuaging white Americans’ fears about rapid demographic change, the practice of recruiting Japanese “picture brides” for male Japanese laborers contributed to a quickly swelling Hawai`i-born Japanese population. Since the American empire had officially incorporated the Territory of Hawai`i in 1900, birthright citizenship law guaranteed these second-generation Japanese (nisei) not only the right to vote, but also the right to own property.

When a flood of patriotic sentiment known as “Americanism” swept the United States during WWI, white landowners began claiming that nisei posed a dire threat to the delicate caste system of racial and religious difference that undergirded Hawai`i’s plantation economy. Equating Japanese “mikadoism” (emperor worship) with Buddhism and Buddhism with Japaneseness, these white elites argued that ideologically unassimilable nisei threatened whites’ fragile hold on Hawai`i’s valuable real estate. Because Hawai`i’s future prosperity demanded that Japanese Americans stay in their “proper” place as docile workers, they argued, Buddhism had to go.   

These fears about labor, religion, and American values erupted in local debates about education. In January 1919, College of Hawai`i Professor of Biology Vaughan MacCaughey argued that Buddhist-run Japanese language schools interfered with the crucial project of cultural assimilation: “The variety of Buddhism dominant in Hawai`i is medieval, ultra-superstitious and intensely Japanese. Mikado-worship and veneration of antique superstitions are prominent features of the system. Its inimical effects on the efforts of the public schools toward genuine Americanization are obvious, even upon cursory examination,” MacCaughey wrote in the education journal School and Society. “The ideals and political life of the United States depend ultimately and absolutely upon the Christian American home,” he continued. “True Americanization can not bloom in a Buddhist Oriental household. Hawai`i can not be American until she truly Christianizes her population, and makes dominant the Christian home.”

Little in MacCaughey’s published research suggests that he was an educational expert, although his ideas were generally consistent with the contemporaneous assimilation tactics of mainland Native American boarding schools that aimed to “kill the Indian … and save the man.” Despite his lack of expertise, Governor Charles J. McCarthy appointed MacCaughey as Superintendent of the Territorial Department of Instruction shortly after the School and Society piece appeared. MacCaughey immediately invited a team of experts from the Department of the Interior to survey the islands’ school system, with the objective of developing a rationale for eliminating the Buddhist-run language schools once and for all. Though the report’s torturous diction was infelicitous, MacCaughey must have been particularly happy with one line: “Although the commission recognizes the inherent right of every person in the United States to adopt any form of religious worship which he desires,” the authors intoned, “nevertheless it holds that the principle of religious freedom to which our country is unswervingly committed does not demand that practices and activities must be tolerated in the name of religion which make the task of training for the duties and responsibilities of American citizenship a well-nigh hopeless one. The commission, therefore, … [recommends] that all foreign-language schools be abolished.”  

Eliminating the schools outright was politically impractical in a territory where Japanese people held a degree of social clout even if they did not hold the reins of political power. The white-dominated territorial legislature got around this issue by establishing onerous restrictions on the schools that technically allowed them to exist but made it virtually impossible for them to operate. Teachers now had to pass an ideological purity test, parents had to pay an exorbitant annual tuition fee, and pupils were not allowed to register until they had received a minimum amount of “proper” patriotic education in Hawai`i’s English-language public schools.  

Even as these legislative changes made it difficult for schools to operate, Hawai`i’s white elites stirred up fears that Japanese language schools served as training camps for little insurgents who threatened not only Hawai`i, but mainland America as well. In November 1921, for example, former Governor McCarthy complained in the Los Angeles Times that Japanese people would soon supplant whites as the dominant landowners on the archipelago: “A Japanese boy born in Hawai`i and therefore an American citizen is … taught by his parents and also in the Japanese foreign language schools that his first duty is not to America but to Japan. This allegiance is doubly strong in that it is interwoven with and fostered by the national religion [that is, Buddhism] of which the Mikado in his heaven-born descent is the head.” A graphic included with McCarthy’s article depicted the archipelago’s shifting demographics by showing a Japanese laborer towering over other ethnicities, while a simple map of the Pacific showed how Hawai`i might serve as a forward base for a Japanese invasion of the American mainland.

To challenge the anti-Japanese offensive, prominent Honolulu-based Buddhist priest Imamura Yemyō wrote deftly argued tracts in both English and Japanese stressing that the American promise of religious freedom extended to Japanese Americans and guaranteed their right to maintain the language schools. In his 1921 Japanese-language tract On the American Spirit (Beikoku no seishin o ronzu), for example, Imamura acknowledged that the Constitution granted others the right to freely critique Buddhism, but he exhorted his readers to mobilize the American principle of religious freedom in fierce defense of their faith.

His readers listened. Led by Honolulu-based newspaperman Fred Kinzaburō Makino, with white attorney Joseph Lightfoot’s fees partially funded by Imamura’s own Buddhist sect, Japanese American parents of language school students filed a case against Governor Wallace R. Farrington in December 1922. The plaintiffs, led by one T. Tokushige, easily won their case at the Territorial Supreme Court and then again at the Ninth Circuit and federal Supreme Court. But the territorial and circuit courts bypassed the issue of religion entirely, focusing instead on the government’s “compelling interest” to maintain order on the islands. The Ninth Circuit court, for example, explicitly addressed the question of whether the territory’s “police power” (that is, the power to suppress potential insurrection) superseded citizens’ constitutional rights. It did not mention religion at all.     

When Japanese Americans finally won their case at the Supreme Court on February 21, 1927, they did so without the help of religious freedom. The court upheld Japanese Americans’ right to run language schools as they wished. But, in keeping with the decisions by the Territorial and Ninth Circuit courts, the Supreme Court ignored the religious animus that drove territorial education policy, reaffirming Japanese Americans’ place as second-class citizens who did not actually deserve religious freedom.
Buddhists are generally not maligned today the way they were in the 1910s and 1920s, but it is easy to see similarities between this earlier case and our present moment. The Supreme Court’s tersely worded order this month refusing to temporarily stay Domineque Ray’s execution made no explicit reference to his religion. But the American ideals of religious freedom and disestablishment were clearly at stake. Although the historical circumstances of Dunn v. Ray and Farrington v. Tokushige are quite different, it is clear that the court’s silences and omissions concerning religion continue to relegate some American minorities to the hinterlands beyond the land of the free.

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This essay is based on chapter three of the author’s Faking Liberties: Religious Freedom in American-Occupied Japan (University of Chicago Press, forthcoming April 2019).