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Law and Religion

Law and Religion: A Critical Anthology

EDITED BY Stephen M. Feldman
Copyright Date: 2000
Published by: NYU Press
Pages: 616
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  • Book Info
    Law and Religion
    Book Description:

    Few issues arouse as much passionate debate as the relationship between church and state. Political parties and coalitions have long jockeyed for position in the battle to either keep the two separate, or to unify them in one nation indivisible from God. While the battle has been raging in the political arena, figures from academia, the media, and myriad other vantage points, have commented on the context and constitutionality of laws governing religious expression. In Law and Religion, Stephen M. Feldman brings together the many perspectives that have shaped policy on this important national issue. In giving voice to the political left and right, as well as to cultural, philosophical, sociological and historical perspectives, the book serves as an even-handed treatment of an issue all too often clouded by biases. Contributors ranging from Stanley Fish to Richard John Neuhaus explore issues extending from religious morality and religious freedom, to fundamentalism, the separation of church and state, religion and public schooling, and liberal political theory. Comprehensive in scope, Law and Religion will stand as an important reference for anyone seeking to further understand this complex and highly emotional topic.

    eISBN: 978-0-8147-2819-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Critical Questions in Law and Religion: An Introduction
    (pp. 1-12)
    Stephen M. Feldman

    The relationship between law and religion in America has become increasingly con; troversial since World War II. The Supreme Court’s growing solicitude for free exer; cise and establishment clause claims partially explains this development. Before the 1940s, the Court did not even recognize the religion clauses as applying against the state governments. After the war, though, the Court periodically—albeit not consis; tently—has found that governmental actions contravene the first amendment. For instance, in one of the most contentious such decisions,Engel v. Vitale, decided in 1962, the Court held that the daily recitation of a supposedly nondenominational prayer...

  5. PART I General Perspectives on Law, Religion, and Politics

    • Chapter 1 Religious Freedom in America: Three Stories
      (pp. 15-23)
      Steven D. Smith

      It is a common theme in recent legal literature that stories are a central part of law. Some legal scholars talkaboutthe importance of stories,¹ while others (especially feminist theorists and critical race theorists) have begun actuallytellingstories—their own stories, or stories that they create, or sometimes a mixture of both.² Although controversial, this turn to storytelling may seem attractive to some in part because it brings a kind of humanity back into a discipline that often seems stifling or stodgily formalistic. On the other hand, stories are notnecessarilyliberating. If the law adopts a dominant...

    • Chapter 2 The Widening Gyres of Religion and Law
      (pp. 24-34)
      Martin E. Marty

      The main trends of twentieth-century life have seldom been better represented in English-language poetry than they were in William Butler Yeats’s “The Second Coming.”¹ Early in the century Yeats saw and foresaw a world of lawlessness, violence, and incoherence. As so often, the poet used a vocabulary of his own. It now demands explanatory footnoting for collegians who first encounter it in the classroom and even for most lovers of poetry, however familiar they may be with the sort of language in its reaches.

      Specifically, teachers and expositors are often asked: “What’s a gyre?” In the present instance, one might...

    • Chapter 3 A New Discourse and Practice
      (pp. 35-53)
      Winnifred Fallers Sullivan

      In 1984, Warren Burger, then Chief Justice of the United States, writing for the majority inLynch v. Donnelly,¹ declared that display of a crèche, at public expense, as a part of a public Christmas display, was not an unconstitutional establishment of religion. The decision rested, in part, on the argument that a crèche is not a religious symbol in the context of a civic Christmas display, and was being displayed in order to effect a purely secular purpose. In 1977 the Supreme Court of Japan declared that a Shinto grounds-purification ceremony,Jichinsai, was not a religious ceremony, and, therefore,...

    • Chapter 4 The Reverend John Witherspoon and the Constitutional Convention
      (pp. 54-66)
      Marci A. Hamilton

      The connections between theology and the constitutional Framers’ choices have been left surprisingly untouched. Some legal scholars have asked what theological theories might explain the religion clauses, but too few have looked to the theological underpinnings of the Constitution’s other requirements.¹ There are times when one is tempted to wonder whether the Establishment Clause’s rule against favoring particular religions has so permeated the legal scholars’ mind-set that we have lost the ability to draw the connections between the great theologians and our scheme of government. Or perhaps the omission of theological education in the universities is to blame. Whatever the...

  6. PART II Religion and the Public Square

    • Chapter 5 The Place of Religious Argument in a Free and Democratic Society
      (pp. 69-88)
      Robert Audi

      We are living in a period of increasing secularity in the industrialized world and increasing sectarianism in much of the less industrialized world. In the West, however, and particularly in the United States, secularization is by no means welcomed by all, and is feared and resented by many who consider themselves religious. In the United States, at least, the tradition of separation of church and state has contributed to secularization. But even a strong separationist tradition is neither necessary nor sufficient for secularization except in certain matters of law and public policy. Many aspects of society can be largely unaffected...

    • Chapter 6 A New Order of Religious Freedom
      (pp. 89-95)
      Richard John Neuhaus

      More than he wanted to be remembered for having been president, Mr. Jefferson wanted to be remembered as the author of the Virginia “Bill for Establishing Religious Freedom.” In the text of the bill he underscored this line: “The opinions of men are not the object of civil government, nor under its jurisdiction.” In a republic of free citizens, every opinion, every prejudice, every aspiration, every moral discernment has access to the public square in which we deliberate the ordering of our life together.

      “The opinions of men are not the object of civil government, nor under its jurisdiction.” And...

    • Chapter 7 The Other Side of Religion
      (pp. 96-114)
      William P. Marshall

      Religion and religious freedom hold a special place in the American experience and in American constitutional law.¹ The search for religious freedom played a paramount role in the settling of the colonies and in the founding of the nation. Religious tradition is deeply embedded in our cultural heritage.² Americans are among the most religious people in the world,³ and religion holds an incalculable importance in their lives.⁴ Religion forges community bonds, provides moral direction, and shapes individual self-identity.⁵ Most important, religion addresses the central concerns of human existence: the search for meaning, understanding, and truth.⁶

      Religion’s special status in American...

    • Chapter 8 Liberal Democracy and Religious Morality
      (pp. 115-148)
      Michael J. Perry

      The political community we call the United States of America is, whatever else it is, a democracy.² The United States is, moreover, a liberal democracy: a democracy committed—in the case of the United States,constitutionallycommitted—to certain basic human freedoms, understood both as constitutive of “genuine democracy”³ and as limits on the laws a political majority may enact, the policies it may pursue, the actions it may take.⁴ I have discussed one such freedom elsewhere: freedom of religion, which in the United States is, famously, a constitutional freedom.⁵

      The general question I want to address here is this:...

    • Chapter 9 The Pope’s Submarine
      (pp. 149-172)
      John H. Garvey

      This essay was originally written as part of a symposium convened to discuss the place of religious arguments about public policy in a liberal democracy. We typically look at the problem through the lens of legal theory or political theory. I want to approach it from the opposite direction—to look at how liberal politics might get in the way of a public official’s religious obligations, and how the conscientious politician can deal with this dilemma. Religious obligations differ across denominations, so I will confine my observations to the Catholic politician. I focus on Catholics for several reasons. I myself...

  7. PART III Religion and Supreme Court Doctrine

    • Chapter 10 Why the State Must Subordinate Religion
      (pp. 175-199)
      Scott C. Idleman

      The First Amendment Free Exercise Clause, as Justice Black would have reminded us, is written in absolute terms. “Congress shall makeno law… prohibiting the free exercise [of religion].”¹ In turn, one might surmise that courts would accord it an absolutist reading, particularly given the relative clarity of the clause’s language, the primacy normally accorded to clear textual mandates of the Constitution, and the fact that its companion provision—the Establishment Clause—is itself interpreted in precisely this manner.² Such has not been the case, however. When defining the protection accorded to religiously based conduct, the judiciary has never...

    • Chapter 11 Equal Regard
      (pp. 200-225)
      Christopher L. Eisgruber and Lawrence G. Sager

      InEmployment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court held that members of the Native American Church were not constitutionally entitled to ingest peyote as part of their religion’s sacrament in the face of an Oregon law outlawing the use of peyote.¹ Many aspects of theSmithdecision have been sharply criticized, but none so much as the general view of religious exemptions announced by Justice Scalia’s opinion for the Court. Justice Scalia distinguished freedom of religious belief from behavior driven by religious belief, and further distinguished laws directed at religion from general laws that...

    • Chapter 12 The Incommensurability of Religion
      (pp. 226-244)
      Abner S. Greene

      The central question for scholars of the Constitution’s religion clauses is this: Is religion special? Does the Constitution require, or permit, or forbid government to treat religious belief as distinctive? The trend in the academy and on the Court is toward denying the distinctiveness of religious belief. Both the Establishment Clause and the Free Exercise Clause are being gutted; a certain type of equality claim has moved to the forefront. In this essay, I will first describe the movement from the treatment of religion as distinctive (during the Warren and Burger Courts) to the subsuming of religion with other forms...

    • Chapter 13 Questioning the Value of Accommodating Religion
      (pp. 245-258)
      Mark V. Tushnet

      Sometimes legal scholars make major contributions by showing us how to look at familiar problems differently. Michael McConnell’s great article on accommodation of religion is such a contribution.¹ McConnell explained how an apparently disparate group of problems actually presented the courts with a single analytic question: Whether the legislation at issue was a constitutionally permissible form of accommodating the needs of religious believers and the demands of the regulatory state. It is a measure of McConnell’s achievement that he wrote just after the Court grappled withThornton v. Caldor, Inc.² There the justices were puzzled about the analytic framework in...

  8. PART IV Outsider Views of the Separation of Church and State

    • Chapter 14 A Christian America and the Separation of Church and State
      (pp. 261-277)
      Stephen M. Feldman

      Most discussions of the establishment and free exercise clauses build upon one dominant or standard story of the separation of church and state. This oft-repeated and commonly accepted story asserts, in part, that the separation of church and state stands as a constitutional principle that equally protects the religious liberty of all Americans, especially religious outgroups. According to a recent Supreme Court opinion, for example, the religion clauses “are recognized as guaranteeing religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’”¹

      This essay challenges this dominant story. I...

    • Chapter 15 Jewish Voices and Religious Freedom: A Jewish Critique of Critical Jewish Thinking
      (pp. 278-295)
      Mark A. Graber

      The idea of a critical Jewish studies movement may seem a bad joke or a pathetic imitation, of as much enduring value as the “Jewfros” Jewish teenagers from Great Neck, New York, sported during the late 1960s. Nevertheless, a tendency in that direction has been under way for at least a decade. Suzanne Last Stone in 1993 noted “a growing body of legal scholarship that is turning (either unabashedly or more indirectly) to the Jewish legal tradition to advance debate in contemporary legal theory.”¹ Recent scholarship claims that Jewish sources might inform particular legal concerns ranging from cloning² to capital...

    • Chapter 16 A Crack in the Wall: Pluralism, Prayer, and Pain in the Public Schools
      (pp. 296-314)
      Frank S. Ravitch

      Recently, Mildred Rosario, a teacher in a New York City elementary school, was fired after praying with and proselytizing students in her classroom and refusing to assure school officials that she would not do so again.¹ This situation is rather unremarkable from the traditional constitutional law perspective. Her conduct was a blatant constitutional violation. Most of the controversy surrounding the situation has arisen from the fact that she was terminated from her position. Conservative politicians and religious right leaders have turned her into a martyr and rallied to her defense.² Separationists have treated her as a pariah who broke the...

  9. PART V Religion and Liberal Political Theory

    • Chapter 17 Secular Fundamentalism, Religious Fundamentalism, and the Search for Truth in Contemporary America
      (pp. 317-344)
      Daniel O. Conkle

      Echoing the prophet Isaiah,¹ Dr. King dreamed of societal harmony and common understanding. Not only would “the glory of the Lord” be revealed, “all flesh” would see the truth together. In today’s America, this vision seems increasingly distant; some would say increasingly fantastic. From abortion to homosexuality to affirmative action, Americans are deeply divided on fundamental issues of morality and public policy. Combatants in an ongoing culture war,² we disagree not only about specific issues but also about the manner in which these issues should be considered, debated, and resolved. At bottom, we are divided because we disagree about the...

    • Chapter 18 The Constitutional Tradition: A Perplexing Legacy
      (pp. 345-372)
      Ronald F. Thiemann

      Public religion presents a dilemma for American democracy. The reasons that some would encourage a religious voice in our public life can easily be identified. Given the pervasiveness and importance of religious convictions within the American populace, it would be odd indeed to deny such profound sentiments any role in our public life. Given the historic significance of religion in shaping our national political culture, the removal of religion from the “public square” would seem to violate our most ancient traditions.¹ If we are to gain genuine clarity on these matters, we need to look anew at the constitutional principle...

    • Chapter 19 Toward a Normative Framework of a Love-Based Community
      (pp. 373-382)
      Anthony E. Cook

      The central problemof liberalism is one consistently overlooked by its critics. The problem is that the liberal conception of community is based too much on fear and too little on love. It is fear of the “other” that generates in liberal thought the fundamental paradox of liberal theory. The liberal subject both desires and fears, needs and is threatened by community. Because community coercion is simultaneously indispensable and yet a threat to individual autonomy—itself the foundation of liberalism—theories of social justice and law are inclined toward conservative understandings of the state and are inherently suspicious of collective...

    • Chapter 20 Mission Impossible: Settling the Just Bounds between Church and State
      (pp. 383-410)
      Stanley Fish

      The thesis of this essay can be simply put. All of liberalism’s efforts to accommodate or tame illiberal forces fail, either by underestimating and trivializing what they oppose or by mirroring it. Michael Walzer provides a concise example at the beginning of his bookOn Toleration. “I won’t have much to say,” he says, “about the arrangements that get ruled out entirely—the monolithic religious or totalitarian regimes.”¹ That is, he won’t have much to say about those forms of thought indifferent or hostile to the tolerance that is his subject. But tolerance as a political strategy and a moral...

    • Chapter 21 Liberal Thought and Religion in Custody and Visitation Cases
      (pp. 411-424)
      Linda J. Lacey

      Religious differences were at the heart of Barbara and Jeffrey Kendall’s bitter divorce.¹ At the time they married, the differences did not seem insurmountable—he was a lapsed Catholic who didn’t appear to take religion all that seriously, and she was a Reform Jew. They mutually agreed the children would be raised as Jews. Ariel, Moriah, and Rebekah were given Jewish names, enrolled in a Jewish school and brought up with a strong sense of identity as Jews.² However, as the marriage went on, Jeffrey’s religious views underwent a dramatic change—he became a fundamentalist Christian. Barbara Kendall had also...

    • Chapter 22 There Can Be Only One: Law, Religion, Grammar, and Social Organization in the United States
      (pp. 425-464)
      Larry Catá Backer

      I begin with a mantra of modern America:

      Law and “religion” can peacefully coexist as equals in American society. American society can support the rule of law, and simultaneously “religion” can prosper, as long as each is placed in its respective and independent realms. In this way, “law” and “religion” can “accommodate” each other. The only item up for discussion is the manner in which this mutual equal accommodation is to be implemented.

      This pablum reeks of a mindless sentimentality reminiscent of the worst excesses of Victorian hypocrisy. Such is the sort of delusional fantasy that seeks reality through the...

  10. Contributors
    (pp. 465-468)
  11. Index
    (pp. 469-484)