How Free Can Religion Be?

How Free Can Religion Be?

Randall P. Bezanson
Copyright Date: 2006
Pages: 296
https://www.jstor.org/stable/10.5406/j.ctt1x7482
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  • Book Info
    How Free Can Religion Be?
    Book Description:

    Randall P. Bezanson's How Free Can Religion Be? explores the Supreme Court's varied history of interpreting the religious guarantees outlined in the First Amendment. The book discusses eight provocative Supreme Court decisions to track the evolution of Free Exercise and Establishment Clause doctrine, focusing on the court's shift from strict separation of church and state to a position where the government accommodates and even fosters religion._x000B__x000B_Beginning with samples from the latter half of the nineteenth century, the detailed case studies present new problems and revisit some old ones as well: the purported belief of polygamy in the Mormon Church; state support for religious schools; the teaching of evolution and creationism in public schools; Amish claims for exemption from compulsory education laws; comparable claims for Native American religion in relation to drug laws; and rights of free speech and equal access by religious groups in colleges and public schools.

    eISBN: 978-0-252-09053-0
    Subjects: Religion, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
  4. Introduction
    (pp. 1-6)

    Thomas Jefferson believed that the freedom of religion was the most important of all the rights conferred in the first ten amendments to the Constitution, commonly called the Bill of Rights. The First Amendment begins with the religion guarantees. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It then turns to freedom of speech, press, and the right peaceably to assemble. Perhaps Jefferson felt that without the individual’s freedom of conscience on matters religious, there could be no freedom in the political and social realms. He may also have believed that without...

  5. STAGE I. The Old Time Religion:: Separation of Church and State
    • [STAGE I. Introduction]
      (pp. 7-8)

      We begin at the beginning. Not the beginning of religion or the religion guarantees in America, but the beginning of the Supreme Court’s interpretations of the meaning of the religion guarantees, interpretations that, as we will see, draw heavily on the English, colonial, and constitutional history of the guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

      While those words, in the form of Article I of the Bill of Rights, were made part of the Constitution in 1791, it would not be until almost one hundred years later, in 1878,...

    • STORY 1 God’s Law or Caesar’s? The Free Exercise of Religion
      (pp. 9-26)

      The First Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . .” The Constitution seems to point to a relationship between the secular state and religion, one in which the state can’t have a favored or official religion, and one in which the individual is guaranteed the right freely to exercise his or her religion.

      Does this mean that religion must be entirely private and free of state influence, even supportive state influence? Or does it mean that government can promote religion—but must not prefer one religion to...

    • STORY 2 The Wall of Separation: “No law respecting an establishment of religion . . .”
      (pp. 27-48)

      The religion guarantees, the Supreme Court often says, are complementary. Yet the clauses are also distinct. The “exercise of religion” is a different thing than an “establishment of religion.” Many people believe that the two guarantees are as often in tension (if not in conflict) as they are complementary. And often as not, the way the Court has avoided the tension in specific cases has simply been to use one guarantee as the dominant tool for analysis, leaving the other as a shadow in the background. How does the Court choose?

      In theReynolds casethe Supreme Court judged George...

  6. STAGE II. The Time of Testing
    • [STAGE II. Introduction]
      (pp. 49-50)

      The bitter pill ofReynolds’sandEverson’srules of strict separation—even with the somewhat qualified “neutrality” exception crafted by theEversonmajority—soon became increasingly difficult for the Court to swallow. Neutrality required that any support for religion in the form of assistance or, as often, exemption from general laws like the prohibition on polygamy, take the form of a general and secular law, and that the support or exemption goes to the individual rather than a church. Free exercise, moreover, applied only to belief and expression, not religious conduct.

      Not long afterEverson, cases arose that would challenge...

    • STORY 3 The Amish Conundrum: The Conflict between Free Exercise and Non-establishment
      (pp. 51-79)

      Can the recognition of an exemption from a law in the name of freedom to exercise religion amount to a preference for a religion that violates the prohibition against government establishing religion? Is this especially likely when the exemption is restricted to only one religion and, furthermore, is granted because the religion “earned” it by its tradition of obedience to law, self-sufficiency, passivity, and embrace of the core values in American society? If a religion that is thoroughly domesticated in the larger social order is entitled, by that fact, to special status, can that be described in any other terms...

    • STORY 4 Darwin versus Genesis
      (pp. 80-102)

      By the 1920s, Charles Darwin’s “theory” of evolution was broadly accepted in biology as an explanation of the development of species by random variation and natural selection based on scientific evidence. It had never been accepted by the many Christians who believed in the literal truth of the Bible and, specifically, the Genesis story. As evolution was meeting with increasing support, it was also meeting stiffer religious resistance from the creationists.

      William Jennings Bryan, famed orator, thrice candidate for president of the United States, and former secretary of state, was a fundamentalist and creationist. More specifically, he believed that the...

    • STORY 5 School Prayer
      (pp. 103-146)

      The Supreme Court’s decision in the school prayer case was felt widely and deeply in American life. It hit home in public schools in every corner of the country, and it hit hard: no more school-sponsored prayers read at the beginning of the day. Immediately following the decision and for months thereafter, the Court received a torrent of mail, virtually all of it critical.

      Following the decision in late June 1962, the Reverend Billy Graham said, “God pity our country when we can no longer appeal to God for Help.” “The Supreme Court,” declared James A. Pike, Episcopal bishop of...

  7. STAGE III. The New Awakening
    • [STAGE III. Introduction]
      (pp. 147-150)

      Over the course of roughly forty years, from theEversoncase in 1947 until the late 1980s, the stable and coherent strict separationist view of the religion guarantees broke down completely, leaving space for the emergence of new and quite different ideas of religious liberty under the First Amendment, and leaving the impression, by 1990, that the Supreme Court was utterly divided and confused.Engelhad, in 1962, closed the schoolhouse doors to state-sponsored prayer in the name of nonestablishment of religion. TheYodercase, just ten years later in 1972, reopened them, this time to an even broader exemption...

    • STORY 6 Peyote: God versus Caesar, Revisited
      (pp. 151-186)

      Alfred Smith lost his job because he used peyote in a religious ceremony.

      Smith was a sixty-three-year-old alcohol and drug treatment counselor for the Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment (ADAPT) in Oregon. He was also a Klamath Indian and a member of the Native American Church, a church that began in the early twentieth century in response to persecution of Native Americans for use and worship of peyote. The church was first named the Church of the First Born, begun in Oklahoma in 1909, then the First Born Church of Christ; finally, after World...

    • STORY 7 Non-establishment as Nondiscrimination
      (pp. 187-233)

      In the fall of 1988, Ronald Rosenberger was an entering student at the University of Virginia. He was also a deeply committed, born-again Christian. In his early days at the university he saw what he judged to be a pervasive attitude of “political correctness,” to which he increasingly took offense. Particularly grating were the student newspapers at the university, which “often mocked” Christians.¹ He was not alone in his view.

      Ronald Rosenberger decided to correct the situation. He did so not by challenging the newspapers’ right to voice anti-Christian and politically correct views, but instead by starting his own paper,...

    • STORY 8 Equality as a Sword: The Ghost of Everson
      (pp. 234-272)

      Joshua Davey was a talented and dedicated young man when he entered college in the fall of 1999. He was bound for the ministry. But he would not get there.

      Joshua grew up in Spokane, Washington, raised in a family of modest means who valued education and made religion an important part of Joshua’s upbringing. Joshua was a serious student in school and in his church. In the spring of 1999, he graduated as valedictorian of his high school class, headed for college the next fall. He had easily been admitted into his school of choice, Northwest College in Kirkland,...

  8. Religion in America
    (pp. 273-280)

    “The life of the law,” said Justice Oliver Wendell Holmes, “is experience, not logic.” With the Constitution of the United States, it is the Supreme Court that gives life to the law. Accordingly, this book is not just an inquiry into the meaning of religious liberty. It is also a study of the Supreme Court of the United States. Vague and evocative at best, the religion guarantees of nonestablishment and freedom of exercise represent the Supreme Court’s, not the Constitution’s, idea of religious liberty.

    The Supreme Court, it is often said, must base its decisions on principle—on the logic...

  9. Suggested Reading
    (pp. 281-284)
  10. Index
    (pp. 285-286)
  11. Back Matter
    (pp. 287-289)