Establishing Limits: A Review of Two Books on How Religion and Law Co-Exist In America

Our country's rising religiosity cannot help but affect the public and political spheres. And, indeed, according to the Associated Press poll, Americans are highly open to clergy lobbying lawmakers, even though it means blending religion with politics; nearly 40 percent of those polled said religious leaders should try to influence elected officials.

But in our modern era, is the role of religion in American life, and American policymaking, as accepting, and as benevolent, as de Tocqueville described it to be at the dawn of the nation?

Two recent books tackle many of the questions that are emerging from the growing role of a religious power in American civic and political life. One is Does God Belong in Public Schools?, by Kent Greenawalt, a professor at Columbia Law School. The other is God vs. the Gavel, by Marci Hamilton, a professor at Cardozo Law School and a FindLaw columnist.

The books read well together, with Hamilton's picking up where Greenawalt's leaves off.

And together, they provide rich background for anyone wishing to understand the complexity of America's current religio-legal landscape.

Still, of the two, Hamilton offers a more courageous and thought-provoking work, while Greenawalt's leaves the reader wanting more. Hamilton expresses deep concerns about the attempts by religious groups to operate above the law - sometimes aided by legislation aimed to confer upon them a privileged status. She also makes important recommendations about how we can maintain the proper balance between church and state.

Does Religion Have a Place in Our Public Schools? Greenwalt says Yes, but Adds Caveats

Ninety percent of America's young people attend public schools, making the answer to Greenawalt's titular question, "Does God belong in public schools?" a critical one. His book provides an in-depth exploration of the jurisprudence surrounding one of the issues most central to today's public debates. How far should public schools, which he calls "among our most important" social institutions, be able to be penetrated by religion?

Ever the law professor, Greenwalt answers his provocative question on the second to the last page of his book with a less provocative "yes, but…" Throughout the book, however, Greenawalt's real answer places much more emphasis on the "yes" than on the "but."

For example, Greenawalt believes that public schools should be teaching more religion, and opines that they will not run into constitutional roadblocks in doing so, as long as they do not endorse one religion over another. Indeed, Greenawalt muses that schools go too far out of their way to avoid including religious texts and traditions in their curriculum because of their (constitutionally unfounded) fears of litigation.

Greenawalt takes the point of view that schools can constitutionally - and should, pedagogically -- highlight the problems with the theory of evolution, and explain to students that different religions may or may not agree with the dominant neo-Darwinist scientific explanation of the history of life on the planet.

According to Greenwalt, even state-mandated moments of silence in the classroom are not constitutionally problematic.

Greenawalt's Structure: Presenting History and Law as they Apply to Modern Debates

The book's structure resembles that of a law school seminar. Does God… begins with an historical review of the development of America's public school system as relates to religion. Then the majority of the book explores this history and jurisprudence as applied to particular contemporary questions.

Greenawalt explains that, in the first half of the Nineteenth Century, public schools were based in a version of non-denominational Protestantism, which by the end of the century was in large part phased out. However, he notes, vestiges of this earlier religiosity remained, such as daily prayer in schools, and quotations from the Bible on classroom walls.

At the turn of the Twentieth Century, the Supreme Court generally had approved these traditional practices. But that changed in the mid-1960s, when the Court began to add limits; for example, it held school-sponsored prayer and devotional Bible reading unconstitutional.

And now, of course, questions about the intersection of law and religion in the public schools are many and varied: To what extent should schools provide space for student Bible study sessions? Should Sikh students be permitted to fulfill their religious obligations to carry kirpans (small ritual sword) to school over anti-weapon provisions? Which religions should be taught in a comparative religion course?

Greenawalt admits that his book does not answer most of the questions he poses - some of which he notes are "extremely difficult." Instead, he says, the book provides a range of "normative principles and practical considerations" that, in his view, should inform policy and curriculum choices by school districts and teachers.

In the end, the book is frustrating to the reader, because it often ignores the real-world considerations that inform what is, and can, actually be done in public schools. For instance, the complexity and subtlety of Greenawalt's many pronouncements about what teachers should, and should not, say seem unrealistic in today's public schools.

Law professors can control class discussion through their skillful deployment of the Socratic method, but when a teacher addresses curious (and energetic) middle school or high school students on such complex issues, there's likely to be a lively, and somewhat less controlled discussion. Teachers would be better served with some broader, clearer benchmarks to try to ensure they stay within constitutional limits.

Moreover, Greenawalt seems starry-eyed about religiosity itself. He instructs the reader to evaluate his many questions "with a generous appreciation of … the central place of religious liberty in our constitutional order," and opines that these many constitutional and political problems are a "small price to pay for the religious freedoms we are fortunate to enjoy."

Of course, religious liberty is a great thing. But at times, it also leads to excesses - in which religious institutions, or religious persons, may try to test the boundaries of church and state in ways that hurt those of other religions, agnostics, or atheists. Greenawalt spends too little time and space considering this risk.

Hamilton's View: Religion Will Always Be Present in Policy Debates, and Raises Risks

Professor Marci Hamilton, however, is well aware of just this type of risk. Indeed, she begins her book by questioning this very kind of rosy outlook about the value of unfettered religious liberty.

Hamilton cites a quotation from Greenawalt (it's taken from one of his earlier articles) holding that religious reasons should have no place in the debate over public policy issues. "It's an interesting theory," Hamilton tells us, "but utterly impossible. Religion cannot be avoided."

For Hamilton, Greenawalt's quotation highlights how disconnected many legal academicians are from the reality of everyday American life. She contends that that distance has led to incorrect -- -and even harmful -- analyses of legal issues governing religion and religious entities in American life.

Whereas Greenawalt's work is partially descriptive, Hamilton's is mainly argumentative: She presents a strong thesis, substantiates it, gives examples, and carries it through her work. And her controversial thesis tells us that Americans' willingness to allow religious entities to claim, and enjoy, unfettered "religious liberty" has led to innumerable harm to thousands of individual Americans, and to American society itself.

As readers of her FindLaw column already know, Hamilton feels that something has gone terribly wrong recently: Religious groups have been allowed to become scofflaws, avoiding many critical legal guidelines by which everyone else must abide. Hamilton suggests we have erred in treating religion as an absolute good, when in fact religion is very far from that.

According to Hamilton, it is not just legislators - or Presidents -- who have rolled over for religious groups. (Hamilton quips that President Clinton never met a religious liberties question to which he could say "no."). It is the public and the media, too, she contends, who nearly always uncritically support religious groups when they ask for special treatment, no matter what their conduct.

Hamilton's Focus: Religious Institutions Who Say They Should Be - or Are -- Above the Law

Hamilton offers a number of persuasive examples of how religious entities have claimed special privileges, arguing they do not to have to follow the same laws as the rest of the country.

It's not just the horrifying facts, for instance, relating to the Catholic Church and child sex abuse that trouble Hamilton; it's also the Church's cavalier attitude toward the law. Even though ignoring the law - which forbids aiding and abetting child abuse - got the Dioceses in trouble in the first place, Hamilton points out that they still want to ignore (or be exempt) from other laws, from the rules of civil discovery, to requirements to report known abuse.

Victims have paid in untold ways for the Church's scofflaw attitude, as Hamilton stresses. And others have paid too: A June 12 New York Times story describes how sexual abuse by priests has cost the Catholic Church in the U.S. more than $1 billion. Much of that money doubtless stems from donations made to further religion, not to defend the Church's decision to turn its back on secular law.

In a recent talk at the University of Chicago, Hamilton quipped that she is the nation's leading expert on religious groups that break the law -- probably because, she half-joked, she is the only such expert. She regards herself as a gadfly - one whose purpose it is to shake America out of our unqualified love affair with anything having to do with religion.

And shake she does. The first half of her book goes into extensive, and often painful, detail about the myriad ways that religious groups have harmed people under the cover of religious liberty. Children suffer physical abuse and are prevented from obtaining medical attention because churches say these are "religious questions" and not for physicians to interfere with. Mega-prayer centers are allowed to trump zoning laws to the detriment of property values and neighborhood character (a consequence that Hamilton points out, often leads to resentment and tensions based in religious differences). Prison gangs demand steak and sherry on Friday afternoons, claiming they are part of a religious group called the Church Of the New Song (the CONS…) - an argument the U.S. Court of Appeals for the Eighth Circuit essentially adopted in a 1974 decision.

Meanwhile, religious entities can legally discriminate in housing programs, such as by forbidding unmarried couples, gay couples or unwed mothers from renting units in religious-controlled housing developments. They can also legally discriminate broadly in employment situations and perform end-runs around federal law, based on what courts have called the "ministerial exception."

And, in a point Greenawalt does not seem as troubled by, American families can withdraw their children from public school on religious grounds if they do not agree with the school's curriculum. Hamilton calls the case that so held -- Wisconsin v. Yoder - the worst Religion Clause case ever. The result of that holding was that the Amish -- along with, presumably, anyone else who credibly cites religious belief as their reason for doing so -- are free to withdraw their children from school after eighth grade.

Courageously, Hamilton takes herself to task for her early views on this subject. A decade ago, she argued that religion should trump most governmental regulation. But she changed her mind after coming into contact with the victims of religious groups that have claimed special status outside and above the law. Such experiences convinced her that her earlier theories about free exercise were "patently absurd," and that religious entities can do harm, just as they can do good.

Hamilton deeply disagrees with - and through her keen analysis, undercuts -- those in power today who claim that religion needs to play a greater role in American society, and that religious entities need to be more, rather than less, protected from legislative and judicial review.

She points out that religious groups are far from disempowered, or in need of special protection; to the contrary, they are vocal, active lobbyists who are "not absent from the public fray at all, but rather are delivering potent blows within it."

The Areas in Which Hamilton Believes Congress Has Gone Astray

The second half of Hamilton's book takes us on a long tour of the development of the law surrounding free exercise jurisprudence. Hamilton - unlike Greenawalt -- expresses strong views about where the Supreme Court and Congress have followed the right path, and where they have gone astray. Often, Hamilton finds the Court's path to be correct, and Congress' wrong.

She endorses the Supreme Court's decision in Employment Division v. Smith -- a 1990 case that held that two private drug counselors who used peyote - an illegal substance - during a religious ceremony were properly denied unemployment benefits after they were fired.

The Court ruled that, under the Constitution, neutral and generally applicable laws can be applied to religious entities, and Hamilton strongly concurs. Indeed, she traces this perspective from Locke to J.S. Mill to modern day America.

Hamilton's close analysis of British history leading up to the Constitution, and her examination of the Founders' views on religious liberty, offer strong proof for her view. She notes that the Founders feared the tendency of religious entities to grab power, and drafted the Constitution to prevent exactly that. They also believed, she notes, that the rule of law must apply to religious individuals and entities just as it does to all other non-religious sectors of American life.

With her careful analysis, Hamilton shows that the "internal logic of Anglo-American common law" has drawn the U.S. to the conclusion that the public good requires laws that are evenly enforced - enforced, that is, on the religious, and their institutions, just as they are to the secular, and their institutions.

Hamilton also applauds the Court's decision, in Boerne v. Flores, to strike down the post-Smith Religious Freedom Restoration Act (RFRA). That Act would have treated any law in the United States as presumptively unconstitutional, and mandated that a law could not be enforced against a religious group unless it was passed for a compelling reason and was tailored as narrowly as possible.

Hamilton is hopeful, too, that the Supreme Court will strike down another bill that was subsequently passed: The Religious Land Use and Institutionalized Persons Act (RLUIPA). This legislation - currently still on the books - gives special privileges, she explains, to religious landowners and prisoners.

Though Hamilton is critical of Congress's passage of RFRA and RLUIPA, in the end she still believes that questions about religious entities' exemptions needed to be decided by legislators, and not by courts.

But these exemptions should be narrow, and not taken lightly: Hamilton offers a sensible three-part test to determine when religious groups should gain exemptions from neutrally applicable laws: The exemption must be accomplished by a legislature; it must be consistent with the public good; and it must be debated under the "harsh glare" of public scrutiny, not quickly railroaded through with minimal, if any, debate.

Hamilton on Religious Institutions and Same-Sex Marriage: Who Speaks for What Faith?

Hamilton's comments on same-sex marriage are especially interesting. In general, she challenges groups claiming to speak on behalf of an entire "religion," (often Christianity). On this topic, in particular, she notes the wide variety of opinions within major religious groups on same-sex marriage.

The term "Christian" has so many connotations that invoking it, she argues, "leads to no particular theological and certainly no public policy conclusion." And "like the Christians," she muses, "the Jews are all over the place on this issue, and one cannot always use the believers' denomination to be certain what they believe."

Nor is it appropriate, Hamilton warns, to let a religious faith determine the meaning of secularly-licensed marriage. She points out, "We in the United States are sometimes blind to what the world already sees. It is a simple fact that those fundamentalists that are insisting that marriage be determined in whole by their religious faiths are, at base, trying to drive toleration and pluralism into an oncoming train of a one-faith society…. This is the sort of parochialism that makes what is a noble constitution in theory the laughingstock of the world. We look hypocritical and naÏve."

It's passages like this that guarantee that Hamilton's book will provide thought-provoking, controversial reading for everyone, regardless of religion.

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Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.