In Beyond Belief, Beyond Conscience, Pulitzer Prize-winning author Jack Rakove makes broad claims about how religious freedom affects us. He contrasts the radical course of American developments with the more complicated ways in which Europeans tried to promote religious tolerance. He argues that both freedom of conscience and disestablishment were critical constitutional principles whose significance we no longer fully appreciate. Rakove explains why Jefferson's and Madison's understanding of these concepts were influential to their constitutional thinking. And he examines some of our contemporary controversies over church and state from the vantage point, not of legal doctrine, but of the deeper history that gave the U.S. its unique approach to religious freedom.
The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Taken as a whole, this statement has the aim of separating church and state, but tensions can emerge between its two elements—the so-called Nonestablishment Clause and the Free Exercise Clause—and the values that lie beneath them. If the government controls (or is controlled by) a single church and suppresses other religions, the dominant church’s “establishment” interferes with free exercise. In this respect, the First Amendment’s clauses coalesce to protect freedom of religion. But Kent Greenawalt sets out a variety of situations in which the clauses seem to point in opposite directions. Are ceremonial prayers in government offices a matter of free exercise or a form of establishment? Should the state provide assistance to religious private schools? Should parole boards take prisoners’ religious convictions into account? Should officials act on public reason alone, leaving religious beliefs out of political decisions? In circumstances like these, what counts as appropriate treatment of religion, and what is misguided? When Free Exercise and Nonestablishment Conflict offers an accessible but sophisticated exploration of these conflicts. It explains how disputes have been adjudicated to date and suggests how they might be better resolved in the future. Not only does Greenawalt consider what courts should decide but also how officials and citizens should take the First Amendment’s conflicting values into account.
In the battles over religion and politics in America, both liberals and conservatives often appeal to history. Liberals claim that the Founders separated church and state. But for much of American history, David Sehat writes, Protestant Christianity was intimately intertwined with the state. Yet the past was not the Christian utopia that conservatives imagine either. Instead, a Protestant moral establishment prevailed, using government power to punish free thinkers and religious dissidents. In The Myth of American Religious Freedom, Sehat provides an eye-opening history of religion in public life, overturning our most cherished myths. Originally, the First Amendment applied only to the federal government, which had limited authority. The Protestant moral establishment ruled on the state level. Using moral laws to uphold religious power, religious partisans enforced a moral and religious orthodoxy against Catholics, Jews, Mormons, agnostics, and others. Not until 1940 did the U.S. Supreme Court extend the First Amendment to the states. As the Supreme Court began to dismantle the connections between religion and government, Sehat argues, religious conservatives mobilized to maintain their power and began the culture wars of the last fifty years. To trace the rise and fall of this Protestant establishment, Sehat focuses on a series of dissenters--abolitionist William Lloyd Garrison, suffragist Elizabeth Cady Stanton, socialist Eugene V. Debs, and many others. Shattering myths held by both the left and right, David Sehat forces us to rethink some of our most deeply held beliefs. By showing the bad history used on both sides, he denies partisans a safe refuge with the Founders.
The United States Constitution's protections for conscience, often described as robust, have in reality been of varying strengths, and the Supreme Court has offered specious rationales to justify the inconsistent application of differing standards while claiming to be consistently applying a single principle.
How did the United States, founded as colonies with explicitly religious aspirations, come to be the first modern state whose commitment to the separation of church and state was reflected in its constitution? Frank Lambert explains why this happened, offering in the process a synthesis of American history from the first British arrivals through Thomas Jefferson's controversial presidency. Lambert recognizes that two sets of spiritual fathers defined the place of religion in early America: what Lambert calls the Planting Fathers, who brought Old World ideas and dreams of building a "City upon a Hill," and the Founding Fathers, who determined the constitutional arrangement of religion in the new republic. While the former proselytized the "one true faith," the latter emphasized religious freedom over religious purity. Lambert locates this shift in the mid-eighteenth century. In the wake of evangelical revival, immigration by new dissenters, and population expansion, there emerged a marketplace of religion characterized by sectarian competition, pluralism, and widened choice. During the American Revolution, dissenters found sympathetic lawmakers who favored separating church and state, and the free marketplace of religion gained legal status as the Founders began the daunting task of uniting thirteen disparate colonies. To avoid discord in an increasingly pluralistic and contentious society, the Founders left the religious arena free of government intervention save for the guarantee of free exercise for all. Religious people and groups were also free to seek political influence, ensuring that religion's place in America would always be a contested one, but never a state-regulated one. An engaging and highly readable account of early American history, this book shows how religious freedom came to be recognized not merely as toleration of dissent but as a natural right to be enjoyed by all Americans.
The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner vs. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground. Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking truth: religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains. A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution. Featuring a new preface by the author, The Impossibility of Religious Freedom offers a new take on a right deemed by many to be necessary for a free democratic society.
The First Amendment of the U. S. Constitution begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The Supreme Court has consistently held that these words, usually called the "religion clauses," were meant to prohibit laws that violate religious freedom or equality. In recent years, however, a growing number of constitutional law and history scholars have contended that the religion clauses were not intended to protect religious freedom, but to reserve the states' rights to legislate on. If the states' rights interpretation of the religion clauses were correct and came to be accepted by the Supreme Court, it could profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion. This book carefully, thoroughly, and critically examines all the arguments for such an interpretation and, more importantly, all the available historical evidence. It concludes that the clauses were meant to protect religious freedom and equality of the individuals not the states' rights
In The Religion Clauses, Erwin Chemerinsky and Howard Gillman examine the extremely controversial issue of the relationship between religion and government. They argue for a separation of church and state. To the greatest extent possible, the government should remain secular. At the same, time they contend that religion should not provide a basis for an exemptions from general laws, such as those prohibiting discrimination or requiring the provision of services.
