Collisions between government and religion were partly responsible for the founding of this country. Some 200 years later, those collisions continue. A legal framework for dealing with constitutional issues raised by some of those collisions is the focus of Marci Hamilton’s book, God vs. the Gavel: Religion and the Rule of Law.
Hamilton focuses on a particular intersection of law and religion: when should religious conduct be exempted from generally applicable laws. Does exempting certain religious conduct raise issues under the First Amendment’s stricture against government involvement in the establishment of religion? Conversely, does the failure to do so mean government is treading on the free exercise rights guaranteed by that same amendment?
Hamilton, who holds a chair in public law at the Benjamin N. Cardozo School of Law, uses an analytical approach to the issue. First, she identifies the potential areas of conflict. Then, she examines the relevant history and case law. Finally, she seeks to resolve and apply in a uniform manner what has been, at times, varying signals given by the Supreme Court and legislative bodies.
The potential problems are myriad. They range from the more mundane, such as the impact of zoning regulations (do you want a church, synagogue or mosque and its attendant activity in your neighborhood?), to the somewhat more limited effect of prison regulations on inmate religious practices to the hotly debated (same-sex marriage) to the topical (child sexual abuse by ministers or priests and refusing medical attention for children because of religious beliefs). When exploring the status and development of legal thought in these areas, Hamilton scrutinizes various U.S. Supreme Court decisions but does not restrict her examination to only those cases. Rather, she also looks at legislative enactments in the U.S. and, equally as important, takes us through the history and development of the treatment of religious entities under English common law and the status of the law at the time the founders were drafting the Declaration of Independence, the Constitution and the Bill of Rights.
At bottom, Hamilton advocates a relatively straightforward and commonsense approach. She is a proponent of the “no harm” rule. Simplistically stated, under that rule the law should accommodate religious conduct as long as that conduct does not cause harm to others. As Hamilton puts it:
The constitutionally relevant question is not what is best for any church – indeed that question is forbidden by the neutrality principle underlying the Establishment Clause. The proper question instead is whether the liberty accorded is consonant with the no-harm principle. If so, the public good has been properly served, because both liberty and order have been taken into account. If not, the public good – and therefore the constitutional order – has been subverted.
If there is a criticism of Hamilton’s approach, it may be one of preference. She believes it is a legislative function to determine the extent to which the law should accommodate religion, although she admits any such determination must be consistent with “the public good” and done “in the harsh glare of public scrutiny.” Hamilton believes the legislative process can fairly assess the public good and still adequately protect small or minority religions. Yet portions of Hamilton’s book seem to undercut her contention. For example, she is highly critical of the federal Religious Land Use and Institutionalized Persons Act (although the position she takes in her book was rejected last month by the U.S. Supreme Court in a decision upholding the Act’s constitutionality as applied to prison regulations, a case in which she authored a “friend of the court” brief). She is also critical of actions taken by various state legislatures adopting certain so-called religious freedom restoration acts and exemptions to criminal laws for certain religious practices that could threaten harm to others. Moreover, legislative action in various states on issues such as abortion and same-sex marriage may also demonstrate that she may have too much faith in a legislative body’s ability to withstand pressure from mainstream religions in defining the “public good.” At the same time, Hamilton correctly points out that of all branches of government, the legislative is probably the most equipped to deal with these issues.
Hamilton’s work is a worthwhile one. It addresses what can be extremely emotional issues with plain language and common sense. Relevance alone, though, doesn’t mean God vs. the Gavel is for everyone’s bookshelf. Although written well enough that it does not come off as an academic tome, it remains scholarly in nature (and extensively footnoted for any who wish to follow up on or challenge her analysis). Most of its appeal and benefit will be for those interested in the jurisprudence of the First Amendment’s religion clauses or the interplay between law and religion. Hopefully, it will also find its way into the hands of local, state and national policymakers who will undoubtedly continue to confront and deal with the inevitable collisions between legal order and religious liberty.