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The Supreme Court and Religion in American Life, Vol. 1

The Supreme Court and Religion in American Life, Vol. 1: The Odyssey of the Religion Clauses

James Hitchcock
Series: New Forum Books
Copyright Date: 2004
Pages: 232
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    The Supreme Court and Religion in American Life, Vol. 1
    Book Description:

    School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing.

    This, the first of two volumes by historian and legal scholar James Hitchcock, provides the first comprehensive exploration of the Supreme Court's approach to religion, offering a close look at every case, including some that scholars have ignored.

    Hitchcock traces the history of the way the Court has rendered important decisions involving religious liberty. Prior to World War II it issued relatively few decisions interpreting the Religious Clauses of the Constitution. Nonetheless, it addressed some very important ideas, including the 1819 Dartmouth College case, which protected private religious education from state control, and the Mormon polygamy cases, which established the principle that religious liberty was restricted by the perceived good of society.

    It was not until the 1940s that a revolutionary change occurred in the way the Supreme Court viewed religion. During that era, the Court steadily expanded the scope of religious liberty to include many things that were probably not intended by the framers of the Constitution, and it narrowed the permissible scope of religion in public life, barring most kinds of public aid to religious schools and forbidding almost all forms of religious expression in the public schools. This book, along with its companion volume, From "Higher Law" to "Sectarian Scruples," offers a fresh analysis of the Court's most important decisions in constitutional doctrine. Sweeping in range, it paints a detailed picture of the changing relationship between religion and the state in American history.

    eISBN: 978-1-4008-2625-4
    Subjects: Law, Religion

Table of Contents

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  1. Introduction to Volume 1
    (pp. 1-2)

    This volume justifies itself on the grounds that, surprising in view of all the attention lavished on the subject, there are a number of significant religion cases that came before the Supreme Court prior to World War II that have been ignored or whose significance has been slighted. For example, the famousDartmouth Collegecase (1819) is almost always treated exclusively as a landmark in the development of the law of contract, despite significant issues concerning religious liberty. This volume provides the most comprehensive survey of the religion cases that has yet been published and can be used, independent of...

    (pp. 3-17)

    One of the inherent paradoxes of religion is that most faiths enjoin a spirit of unworldliness, urging believers to look beyond earthly possessions in their search for ultimate reality, while at the same time all religions exist in the temporal order and can only manifest themselves through material realities. Hence organized religions have usually been quick to secure their property rights, justifying this on the grounds that material assets are necessary in order to witness the reality of the spiritual.

    Most civil cases in the American judicial system involve disputes over property, and courts have perhaps been most comfortable when...

  3. Chapter Two BELIEF AND ACTION
    (pp. 18-31)

    During its first century and a half, the Court seldom heard cases involving the Free Exercise Clause and only once found a violation of that clause. However, during every era, the Court has considered cases that substantively involve religious liberty, even if the Free Exercise Clause was not explicitly invoked.

    One of the most important of all the Court’s early cases—Dartmouth College V. New Hampshire¹ (1819)—has always been treated as a landmark in the development of the law of contract. Considered formally, it was precisely that. But in substance it was an important case involving religious freedom.


  4. Chapter Three THE PHANTOM WALL
    (pp. 32-42)

    Prior to 1948 the Court never found a violation of the Establishment Clause and was seldom asked to do so. It did, however, deal with a number of cases that implied the establishment issue.

    The most curious of these wasVidal v. Girard’s Executors(1844),¹ in which the kin of a wealthy philanthropist sought to overturn his will after his death, because he had endowed a boys school with the provision that no clergyman of any denomination should ever teach there. Stephen Girard disavowed any insult to Christianity and said he merely wished to spare “tender minds” the trauma of...

    (pp. 43-59)

    The Modern Court’s concern for civil liberties is conventionally dated from a dictum of Justice Stone in an otherwise rather insignificant 1938 case,U.S. v. Carolene Products, one of the series of cases reviewing the economic legislation of President Franklin D. Roosevelt’s New Deal. Virtually in passing, in a mere footnote, Stone asked “whether prejudice against discreet and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for correspondingly more searching judicial inquiry.”¹ Although the suggestion was made in...

  6. Chapter Five EXPANSION
    (pp. 60-89)

    In 1944, as the Court was negotiating the forest of cases involving Jehovah’s Witnesses, it also decided a case,US v. Ballard,¹ which brought forward a unique issue that further manifested the new commitment to the rights of minorities.

    The I Am Movement took its name from the words of God to Moses in the burning bush (Exod. 3:14). Its leaders were prosecuted by federal authorities for mail fraud, because they solicited funds claiming that they could cure illnesses, had been taken up into heaven, had walked with the angels, and had shaken hands with Jesus. The indictment claimed that...

  7. Chapter Six CONTRACTION
    (pp. 90-121)

    During the world war ii period when the Court was preoccupied with issues of religious freedom arising almost entirely from the beliefs and practices of the Jehovah’s Witnesses, it paid no attention to establishment issues. But almost as soon as the War was over, the same factors that made possible the revolution in attitudes toward religious freedom began to shape the Court’s understanding of establishment as well.

    The legal climate also changed because of the newly aggressive posture of three organizations—the American Civil Liberties Union, the American Jewish Congress, and Protestants and Other Americans United for Separation of Church...

    (pp. 122-148)

    The ParadoxicalEversondecision of 1947, upholding indirect state aid to religious schools while laying down the very principles that militated against such aid, was a time bomb that did not begin detonating until over twenty years later.

    InBoard of Education v. Allen(1968), the Court heard the first of a long series of modern cases turning on the question of whether, and in what way, government might assist private religious schools. The Court upheld a New York State practice whereby secular textbooks were lent by the state to students in religious schools.

    . Justice White wrote the majority...

  9. Conclusion
    (pp. 149-162)

    Prior to 1940 the Supreme Court almost never found an explicit violation of the Free-Exercise Clause. ThePermolicase (1845) ruled bluntly that the Bill of Rights did not bind the states, thereby barring consideration of most alleged violations of religious liberty, and the Mormon polygamy cases seemed to show that the Court had little solicitude even for religious claims that might fall within its jurisdiction. Only theHoly Trinitycase (1892) found a violation of religious freedom, although even that decision was limited, in that it did not invalidate a federal law but merely found that Congress had not...