Funny thing about the law: people break it. Even the arbiters.
Several days ago, Tennessee Child Support Magistrate Lu Ann Ballew ruled that a baby’s first name be changed from “Messiah” to “Martin.” Ballew supported her ruling by stating that “the word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ.” There are no state or federal laws to support her ruling. She would be the very definition of the “activist judge” conservatives love to hate if not for her values and the cultural power beneath her position. She is no activist. She is the norm.
The case began when Messiah’s parents could not agree on his last name. At birth, the baby’s given name was Messiah DeShawn Martin. The father objected and insisted that the baby should take his last name (McCullough). Messiah’s first name was not in dispute—an inconvenient but easily discounted fact in the name of rogue justice. The parents’ religious identities are unclear. It is entirely plausible that they are Christian, further reinforcing the reality that Christian hegemony even marginalizes minority Christian viewpoints as non-orthodox.
Ironically, Messiah is not alone—and not just in his actual name, since, as many critics have noted, “Messiah” is increasingly one of the most popular baby names in the United States. An astute observer will also recognize that these name/religion cases appear in the national media every couple of years or so. From cases about the name “Christ” to “Satan,” courts have assumed the power to re-name babies for both cultural and religious reasons since the nation’s inception. While to my knowledge no one has done a precise count of these kinds of cases, given their regular recurrence, it is reasonable to imagine that they number in the hundreds if not thousands.
There are many topics we might analyze when considering this case. We might examine the role race and white privilege played in Ballew’s decision; Jaleesa Martin, Messiah’s mother, is black, Ballew is white. We might consider the way cultural insensitivity influenced Ballew’s decision; while giving children particular “sacred” names is considered blasphemous in some—mostly white—sectors, for others, the practice is both common and considered to honor the namesake. We might analyze the gender dynamics in the case; lost in all of the discussion of the case is the fact that the magistrate also changed Messiah’s last name to his father’s surname. We might consider the particular child/parent/state power dynamics reinforced by the American legal system; Ballew reinforced the importance of this issue when she insisted the she had to change Messiah’s name in order to protect him from his parents—according to the magistrate, the name “could put him at odds with a lot of people.” All of these issues are important. However, here I want to talk about what this case reveals about the complicated relationship between religion and law in the United States.
Roughly a year and a half ago, I took a class on Religion and Law in the United States from the amazing Grace Yia-Hei Kao. Like all of my courses with her, thanks to her deep and thorough pedagogy, I ended the term with an encyclopedic knowledge of the class topic. And yet, at no fault of the instructor or my classmates, I often found myself quite uncomfortable in the class. I couldn’t quite articulate the reasons for my discomfort then, but over time I’ve come to realize that my expectations didn’t match up to the topic coverage and general approach of the course. In the class, we learned everything from different interpretations of the Establishment Clause to the tort liability of religious groups. In short, we learned the letter of the law.
In a way, beyond the letter of the law, what I also wanted to consider was the actual practice of the law. I wanted the culture of the law. I wanted to discuss why judges and arbiters in hundreds of cases like Messiah’s openly flout the letter of the law by effectively treating Christianity as the established religion of the land. Even more disturbingly, I wanted to discuss how even though these decisions are unconstitutional, most of these decisions stand and are not appealed. Due to pro bono legal support from several groups, Jaleesa Martin has been able to appeal her case; most similar cases (without the national discussion) are never appealed. How can these arbiters disregard the law and mostly get away with it?
They get away with it because most of the parents cannot afford the appeals costs or the risk of social ostracism if the case becomes public. I recently read Carol Barner-Barry’s shocking and brilliant Contemporary Paganism: Minority Religions in a Majoritarian America. Don’t let the title fool you: the book is not a general introduction to modern Paganism. Instead, it is a chronicle of legal cases involving Christian privilege and American Pagan communities. Providing jaw-dropping example after example of flagrant abuse and oppression of American Pagans by Christian magistrates both through and around the law, Barner-Barry dispels the popular illusion that state figures are neutral arbiters of the law. In one of the most upsetting cases, a principal suspended a Pagan student after she had been both physically and emotionally assaulted by several bullies because of her religious identity. The principal justified the suspension saying that the bullies had claimed that the Pagan student had “cast a spell on them.” The bullies were not punished. The family did not go to the courts out of fear of reprisal. I wish I could say that these kinds of events are rare, but as those that have experienced religious oppression will know intimately, they are quite common. Only the reporting rates are rare.
Further, in theory and in practice, religious minorities in the United States are often forced to decide between the lesser of two evils. On one hand, they can embrace the accommodation of religion that de facto translates into the accommodation and privileging of Christianity—and only Christianity— in the public sphere. On the other hand, they can support the separation of religion and government. Not only does this lead to the silencing of their public religious identities, but it also creates the illusion that the state (and its arbiters) have no religious preferences. Religious minorities are forced to choose between public Christianity or public secularism. While religious minorities often strategically seek recourse to one camp or the other out of necessity (as Jaleesa Martin did with the ACLU), neither option is a long-term solution in the cause of justice. We must change American law and culture so that other religious perspectives can be heard.
In retrospect, my expectations for my religion and law class were misplaced; there was nothing wrong with the class itself. As every class must be, it was rightly circumscribed. Even within interdisciplinary projects, topical boundaries make learning possible within the academy. Through abstraction and artificial limits, the academy can give us tools to better understand, critique and change society. Day-to-day life, however, is different. In this world, the formal letter and actual practice of the law are never completely separable.
When we aspire to address the wrongs in our society related to religion and law, it is not enough to create religiously neutral laws (even if that is possible). Certainly, we can and should add additional legal protections for religious minorities in the United States, including, for example, including making the appeals process in these sorts of cases less dangerous and costly. But this is not enough. If judges successfully disregard the law and invoke other cultural sources for their decisions, then we must also critique those norms. Law is not an endlessly repeatable mechanistic process; it is shaped and implemented by people. As such, no cultural stone of Christian privilege can be left unturned. We must strive to change both law and surrounding culture together. Religious minorities should not be the ones on trial. We must pick up our pens to change the law, but we must simultaneously change hearts and minds.
Even this is not enough. As religious minorities, we must take back the ability to name ourselves and name the full breadth of the structures that oppress us. As Messiah DeShawn Martin teaches us, names hold power. Most importantly, we must change who are the arbiters of justice. The judged must become the judges.