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Religion and the Constitution

Religion and the Constitution: Volume I: Free Exercise and Fairness

Kent Greenawalt
Copyright Date: 2006
Pages: 480
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    Religion and the Constitution
    Book Description:

    Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to their children--or the refusal of doctors to perform abortions?Religion and the Constitutionpresents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.

    In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause. Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.

    Calling throughout for religion to be taken more seriously as a force for meaning in people's lives,Religion and the Constitutionaims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.

    eISBN: 978-1-4008-2752-7
    Subjects: Law, Religion, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xiv)
  4. CHAPTER 1 Introduction
    (pp. 1-10)

    Americans should freely practice their religions, and government should not establish any religion: these are crucial principles of our liberal democracy. Although the principles themselves receive wide assent, people disagree intensely over what they signify and how they apply. Does treating religious individuals and organizations fairly mean regarding them like everyone else or giving them a mix of special benefits and disadvantages?

    This book, volume 1 ofReligion and the Constitution, concentrates on the free exercise of religion; a companion will focus on nonestablishment. These are of course the two main pillars in the Constitution’s treatment of religion. Because issues...

  5. CHAPTER 2 History and Doctrine
    (pp. 11-34)

    Providing background for our study’s contemporary, analytical perspective, this chapter sketches the original history of the Free Exercise Clause and its subsequent doctrinal development. It also relates enough about the Establishment Clause to show how the two religion clauses fit together.¹

    That we can learn from history is a truism. Historical investigation rarely, if ever, tells us how to respond to modern problems, but it can teach us about our society’s values and lines of division, and it can illumine pitfalls and possibilities.

    Within constitutional law, history figures in two special ways. Anglo-American courts build approaches to legal issues over...

  6. CHAPTER 3 Freedom from Compelled Profession of Belief, Adverse Targeting, and Discrimination
    (pp. 35-48)

    Amidst modern controversies over what it protects, the Free Exercise Clause has a settled core, which overlaps what the Establishment Clause guarantees. The government cannot force people to profess religious beliefs, it cannot target religious practices for unfavorable treatment, and it cannot discriminate among religions. These basic, straightforward principles raise some intriguing questions about what constitutes discrimination, about the “freedom to believe,” and about legislators’ attitudes toward the value of religious activity.

    The government cannot demand that anyone engage in religious practice or subscribe to a religious creed. Such compulsion both denies free exercise of religion and amounts to establishment...

  7. CHAPTER 4 Conscientious Objection to Military Service
    (pp. 49-67)

    We can see crucial questions about free exercise exemptions and classifications in sharp outline by focusing on privileges for conscientious objectors to avoid military service—an exemption from general legal requirements that predates the Constitution itself and has had broad public support over the years. Pacifists (and some others) cannot in good conscience engage in combat or in any military capacity. Most, but not all, pacifists base their objections on religious convictions of a traditional sort. Although the practical importance of conscientious objection in the United States diminished when a volunteer army replaced military conscription, excusing people from military service...

  8. CHAPTER 5 Religious Exemptions and Drug Use
    (pp. 68-85)

    For many decades, harsh criminal laws against the sale and use of hallucinatory drugs—including LSD, marijuana, and peyote—have restricted the religious practices of some groups. The modern Supreme Court’s most important free exercise decision involved use of peyote by members of the Native American Church.¹ How should the government respond to religious uses of these forbidden substances? As with conscientious objection, our inquiry about a possible exemption must encompass both wise policy and sound constitutional law. When we understand how factors about drug use differ from those regarding military service, we can see why contextual evaluation of particular...

  9. CHAPTER 6 Free Exercise Objections to Educational Requirements
    (pp. 86-108)

    When parents insist that what or how schools teach is at odds with their family’s religious beliefs and practices, should the state grant exceptions from its normal demands and, if so, in what form?

    The underlying concerns in educational conflicts involve children’s development, as well as what they are required to do in the present. The state aims to educate children to make autonomous choices and to participate in democratic government. Parents who want their children to avoid teaching that will erode religious faith, may object to “mere exposure” in the form of reading or listening to objectionable ideas, as...

  10. CHAPTER 7 Sincerity
    (pp. 109-123)

    This chapter and the next involve a shift in focus. Having reviewed a number of discrete topics concerning the law’s treatment of religious claims, we turn now to questions that cut across a wide range of subjects. How far can officials or juries decide whether people making claims of free exercise are sincere? And, if judgments about sincerity are needed, justhowshould they be made? The next chapter takes up the complicated issue to which we were introduced by the conscientious objector cases: how should courts decide what is religious? These chapters constitute two of a trilogy of general...

  11. CHAPTER 8 Saying What Counts as Religious
    (pp. 124-156)

    When statutes and constitutional principles give special treatment to a religious action or organization, courts must be able to say what is religious. Usually something clearly is or is not religious, but religion is hardly a straightforward concept. In this chapter, we shall ask how courts should proceed when they consider phenomena on the edge of what qualifies as religious.

    The simplest context in which the question about “religion” can arise is when someone seeks a privilege granted only to those with religious grounds. For example, a person who invokes the Religious Freedom Restoration Act (RFRA) protection against substantial burdens...

  12. CHAPTER 9 Controlled Environments: Military and Prison Life
    (pp. 157-171)

    We have considered three fundamental conflicts between religious conscience or practice and secular laws—objections to military service and educational materials and claims to use forbidden drugs in worship—and we have viewed general concerns about sincerity and what counts as religious. We now turn to the kinds of clashes between general regulations and the religious needs of individuals that arise with regularity in military bases and prisons, restricted environments in which the government controls people’s lives to a degree unthinkable for adult civilians, who choose what to eat and wear and schedule their own activities, subject only to the...

  13. CHAPTER 10 Indirect Impingements: Unemployment Compensation
    (pp. 172-183)

    Oppositions between religious practice and government regulations do not always involve direct conflicts between what the government requires and what a person feels constrained to do for religious reasons. The government may set conditions for the receipt of benefits, such as unemployment compensation, or it may establish rules of behavior, such as Sunday closing for stores, that allow someone to exercise his religious convictions but make it costly.¹ This chapter and the next deal with these topics.

    In all states, laid-off workers receive unemployment compensation for some months.² To be eligible, workers must be available for work and not have...

  14. CHAPTER 11 Sunday Closing Laws and Sabbatarian Business Owners
    (pp. 184-191)

    Since the country’s founding, state laws have required businesses to close on Sunday. A combination of legislative reform and judicial limitation has attenuated these laws, but many states still retain various Sunday restrictions.¹ What exceptions, if any, should a state grant if it chooses to have Sunday closing laws? Of course, such laws create exceptions for emergency needs—at least one pharmacy in a broad geographical area will open so that people can get medicines—and for public pleasure and convenience—buses run on Sunday and people attend professional sports events, concerts, and movies. But these exceptions do not tell...

  15. CHAPTER 12 Government Development of Sacred Property
    (pp. 192-200)

    How far should the government restrict activities of its own, such as land development, because they impinge on religious beliefs and practices? The government decides to construct a dam, build a road, allow timbering, or make an area accessible for recreational use. A group of Native Americans objects that the land is sacred, and that development would destroy the undisturbed natural setting essential for worship at sacred sites. Should the government forego its proposed development? Issues like these differ from any we have yet considered. The government does not demand or forbid actions by citizens; it does not set conditions...

  16. CHAPTER 13 Difficult Determinations: Burden and Government Interest
    (pp. 201-232)

    When legal standards cast only in general terms tell officials what religious claims to accommodate, administrators and courts must evaluate burdens on religious exercise and the strength of competing government interests. Under the constitutional free exercise standard that predated the 1990 ruling inEmployment Division v. Smith, and that continues in some states, and under various statutes, including the Religious Freedom Restoration Act,¹ thirteen similar state statutes, and the Religious Land Use and Institutionalized Persons Act of 2000,² a claimant succeeds only if he is sincere, suffers a significant enough burden on his religious exercise, and could be exempted from...

  17. CHAPTER 14 Land Development and Regulation
    (pp. 233-245)

    Legal regulation of land development by private parties has long been a fertile source of conflict between the free exercise of religion and restraints that the government imposes, ostensibly at least, for the common good. This kind of regulation differs from the laws we have reviewed in previous chapters in mainly affecting religious organizations, rather than individuals. The regulation is typically local and is often focused on particular properties, with administrative boards of municipalities deciding for or against a proposed religious use. What was once a question of common-law nuisance—did a church interfere with its neighbors to such a...

  18. CHAPTER 15 Confidential Communications with Clergy
    (pp. 246-260)

    People often speak to clergy as pastors of the soul. They expect what they say to them to be kept in confidence. How far should the laws protect this secrecy (1) by relieving clergy from obligations to disclose that are imposed upon other members of society and (2) by rewarding lawsuits against clergy who have chosen to disclose what they have learned? In this chapter, we shall look at the issues these questions pose about the exercise of religion and about acceptable classification, considering the legal privileges of clergy not to reveal confidences, as well as what legal obligations they...

  19. CHAPTER 16 Settling Disputes over Church Property
    (pp. 261-289)

    In this chapter, we turn to judicial resolutions of disputes among factions of religious groups. For the most part, this subject has not involved legislatures;¹ rather, judicial approaches developed as aspects of state common law have been measured against what the religion clauses together require.

    When members of a religious group cannot resolve internal disputes about the use of property, they may turn to civil courts. The law’s involvement in these instances is more constrained than it would be if courts were ruling about secular associations. But is this fair? Other questions of equality, and fairness arise between members of...

  20. CHAPTER 17 Wrongs and Rights of Religious Association: The Limits of Tort Liability for Religious Groups and Their Leaders
    (pp. 290-325)

    With this chapter we return to the fundamental question whether people with religious reasons to act should be free of liability imposed on others. Here we will focus on whether religious practices should be protected against claims that religious groups and leaders have inflicted injuries and should pay damages under the law of torts.

    A tort is a civil wrong. It typically gives rise to a claim for monetary damages by the victim, and may also be the basis for an injunction to stop the offending behavior. Aspects of the law of torts generate issues about the balance of religious...

  21. CHAPTER 18 Employment Relations: Ordinary Discrimination and Accommodation
    (pp. 326-358)

    The book’s final chapters mainly concern the law’s treatment of relations between private parties in respects that reach beyond the ordinary law of civil wrongs. This chapter and its successor examine laws that bar religious discrimination. These are followed by an examination of when religious bodies may discriminate on grounds that would be barred to other organizations. Chapter 21 considers privileges to refuse medical treatment and to refuse to participate in medical procedures. Chapter 22 asks how far the courts should be responsive to religious considerations in determining custody of children and the conditions under which that custody is granted....

  22. CHAPTER 19 Employment Relations: Harassment
    (pp. 359-376)

    Given that ordinary discrimination is undesirable, so also is harassment. Title VII and similar state laws have been interpreted to forbid workplace harassment because of race, color, religion, sex, or national origin. Harassment is often caused by the speech of employers or fellow workers. Evaluating speech that is well intended but causes deep offense is especially perplexing.

    We need initially to distinguish two kinds of harassment: quid pro quo and hostile environment. Although quid pro quo harassment is most familiar in respect to sex—a male supervisor tells a woman he will fire her if she does not have sex...

  23. CHAPTER 20 Rights of Religious Associations: Selectivity
    (pp. 377-395)

    Religious groups are not quite like others when it comes to discrimination; this chapter explores these differences. Associations that are undeniably religious, such as churches, synagogues, and mosques, may choose their members and staff on grounds that would be improper for a commercial company. Here we shall inquire how these religious associations should regard such choices and how far government should regulate them. The law on this subject includes explicit statutory treatment, limitations on statutory coverage drawn from fundamental principles, and constitutional rights. Among the questions we shall examine is how the treatment of religious associations should compare with that...

  24. CHAPTER 21 Medical Procedures
    (pp. 396-420)

    Poignant issues about free exercise arise when people have religious convictions against receiving standard medical treatment for themselves or their children, or against participating in providing forms of treatment. Should the state accept decisions to decline treatment or intervene to require it? Should it protect medical personnel who object in conscience to providing treatment?

    In our examination of refusals to receive treatment, we need to recognize that some religious persons who decline ordinary medical assistance believe that an alternative form of treatment, say faith healing or meditation, will be more effective in curing their illnesses.¹ Christian Scientists, for example, do...

  25. CHAPTER 22 Child Custody
    (pp. 421-438)

    Parental struggles over the custody of children raise thorny questions about the law’s treatment of religious convictions and practices. The two main occasions for these disputes are when one divorcing parent claims that the other’s religious practices constitute a reason to refuse that parent custody, and when one parent seeks to control what the other does with the child in regard to religion—for example, stopping her from taking the child to religious services or involving the child in undesirable religious practices. The basic issues of principle are similar for the two kinds of cases.

    The serious controversies in both...

  26. CHAPTER 23 Conclusion (and Introduction)
    (pp. 439-444)

    Is the free exercise of religion an important aspect of our constitutional order? Our examination of free exercise in a variety of contexts helps us to understand why answering this apparently straightforward question is not so simple.

    In one sense, it is beyond doubt that the free exercise of religion is a vital constitutional principle. There it is in the First Amendment, along with freedom of speech and of the press; and anyone naming the basic liberties of our society would include religious liberty. That liberty is supported by many overlapping considerations, including the centrality of religion in the lives...

  27. INDEX
    (pp. 445-455)