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Review Essay: Where the Action Is—Law, Religion, and the Scholarly Divide

Published online by Cambridge University Press:  18 June 2018

Sarah Barringer Gordon
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Review Article
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Religion and American Culture , Volume 18 , Issue 2 , Summer 2008 , pp. 249 - 271
Copyright
Copyright © Center for the Study of Religion and American Culture 2008

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References

Notes

1. 370 U.S. 421 (1962).

2. Gordon, Sarah Barringer, “‘Free’ Religion and ‘Captive’ Schools: Protestants, Catholics, and Education, 1945–1965,” DePaul Law Review 56 (2007): 1177, 1210–19Google Scholar; Ivers, Gregg, To Build a Wall: American Jews and the Separation of Church and State (Charlottesville, Va.: University of Virginia Press, 1995), 137 Google Scholar; Dierenfield, Bruce J., “Engel v. Vitale,” in The Public Debate over Controversial Supreme Court Decisions, ed. Urofsky, Melvin I. (Washington, D.C.: Congressional Quarterly Press, 2006), 215 Google Scholar.

3. Tocqueville, Alexis de, Democracy in America, 2 vols. (1835–40; repr., New York, Vintage Books, 1990), 1:272–87, 300–313.Google Scholar

4. For cases on both issues, see Edwards v. Aguillard, 482 U.S. 578 (1987), and Kitzmiller v. Dover Area School Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).

5. Laycock, Douglas, “A Syllabus of Errors,” Michigan Law Review 105 (2006–2007): 1169–87 (reviewing Hamilton, God vs. the Gavel)Google Scholar.

6. This is not meant to disparage the excellent work of writers such as the Reverend Anson Phelps Stokes, whose three-volume collection of materials, Church and State in the United States (1950), is still a classic in the field. See also Mark deWolfe Howe, John Wilson, Dean Kelley, Shawn Francis Peters, and a newcomer, Leslie Griffin.

7. Zollman, Carl F. G., American Civil Church Law (New York: Columbia University Press, 1917)Google Scholar.

8. Two of the scholars, Hamilton and Sullivan, do not believe such standards can be developed through adjudication—Sullivan because courts are incapable of protecting religion, and Hamilton because she believes that only legislatures have the investigatory powers to determine whether religious institutions are actually harming society.

9. Feldman, Divided by God, 7, passim (chap. 6, “The Values Evangelicals”).

10. Ibid., 221.

11. Ibid., 237.

12. Ibid., 285 n.1, citing Feldman, Stephen M., Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (New York: New York University Press, 1997)Google Scholar.

13. Madison, Memorial and Remonstrance, par. 3.

14. Feldman, , Divided by God, 247 Google Scholar. For a discussion of the history and constitutional place of “under God” in the pledge, see Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir., 2002), holding the revised pledge violated the establishment clause. The opinion was later revised to ban only the inclusion of the pledge in the school, and the case on appeal to the Supreme Court was reversed on the ground that the father, who was not his daughter's custodial parent, did not have the right to sue on her behalf. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004).

15. Ibid., 242.

16. Weisbrod, Carol, “Family, Church and State: An Essay on Constitutionalism and Religious Authority,” Journal of Family Law 26 (1988): 741 Google Scholar.

17. Williams, Roger, “Mr. Cotton's Letter Lately Printed, Examined and Answered,” quoted in Mark deWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 5–6 Google Scholar.

18. Isaac, Rhys, Transformation of Virginia, 1740–1790 (Chapel Hill: University of North Carolina Press, 1982)Google Scholar; McLoughlin, William, New England Dissent, 1630–1833: Baptists and the Separation of Church and State, 2 vols. (Cambridge: Harvard University Press, 1971)Google Scholar.

19. Gordon, “‘Free’ Religion and ‘Captive’ Schools.”

20. The entire letter, complete with editorial changes, appears at http://www.loc.gov/loc/lcib/9806/danbury.html.

21. Reynolds v. United States, 96 U.S. 145, 164 (1879); Everson v. Board of Education of Ewing Tnship, 330 U.S. 1, 16 (1947).

22. Hamilton, God vs. the Gavel, 5.

23. Ibid., 13.

24. Ibid., 141. The mention of 9/11 at the opening of chap. 6 (“The Prisons and the Military”) just hammers home the point that this book is all about the traitors in our midst—those who pose as trustworthy, even upstanding, members of society but in reality conspire to ruin the lives of innocents.

25. Ibid., 56.

26. Ibid., 275.

27. Jefferson was an early opponent of judicial opinions on religion and always trusted legislatures more than courts. See his letter to Major Cartwright, written much earlier but first published in 1824, discussed in Sarah Barringer Gordon, “Blasphemy and the Law of Religious Liberty in Nineteenth-Century America,” American Quarterly 52 (2000): 682.

28. Ibid., 279.

29. Ibid., 300.

30. William Stacy Johnson, “Book Review, God vs. the Gavel,” Journal of Law and Religion 22 (2006–2007): 287.

31. Laycock, “A Syllabus of Errors,” 1169.

32. See, e.g., Davis, David Brion, “Some Themes of Counter- Subversion: An Analysis of Anti-Masonic, Anti-Catholic, and Anti-Mormon Literarture,” Mississippi Valley Historical Review 47, no. 2 (1960): 205 CrossRefGoogle Scholar.

33. Krakauer, Jon, Under the Banner of Heaven: A Story of Violent Faith (New York: Anchor Books, 2004)Google Scholar.

34. Sullivan, Winnifred Fallers, The Impossibility of Religious Freedom (Princeton, N.J.: Princeton University Press, 2005)Google Scholar.

35. Colson, Charles W., Born Again (Grand Rapids, Mich.: Chosen Books, 1976)Google Scholar.

36. Sullivan, Prison Religion, MS p. 255.

37. Ibid., 210.

38. Ibid., 214.

39. See Eisgruber, Christopher and Sager, Lawrence, “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct,” University of Chicago Law Review 61 (1994): 1245 CrossRefGoogle Scholar.

40. Eisgruber, and Sager, , Religious Freedom and the Constitution, 52–53 Google Scholar.

41. See, e.g., Paulsen, Michael Stokes, “Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication,” Notre Dame Law Review 61 (1986): 311 Google Scholar; Lupu, Ira C., “Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution,” Connecticut Law Review 18 (1986): 739 Google Scholar; and Marshall, William P., “What Is the Matter with Equality? An Assessment of the Equal Treatment of Religion and Nonreligion in First Amendment Jurisprudence,” Indiana Law Journal 75 (2000): 194 Google Scholar.

42. Eisgruber, and Sager, , Religious Freedom and the Constitution, 124 Google Scholar.

43. Ibid., 59, 125–26.

44. Ibid., 153–56.

45. Ibid., 90.

46. Ibid., 91.

47. Lyng v. Northwest Cemetery Protective Ass’n., 485 U.S. 439 (1988).

48. In Lyng, the Court held that construction of the road on the government's own land might have been devastating for native practices but was not constitutionally protected. As Eisgruber and Sager point out, “Congress, however, was considerably more sympathetic with the Native Americans’ religious claim, and it promptly defunded the road.”

49. Eisgruber, and Sager, , Religious Freedom and the Constitution, 108 Google Scholar.

50. The difficulty of defining religion noted by Sullivan is, thus, apparent in Eisgruber and Sager's work, as well. For a critique of approaches that differentiate the meaning of the word “religion” as between establishment and free exercise, see the concurrence of Judge Arlin Adams, in Malnak v. Yogi, 592 F.2d, 197, 211 (3d Cir., 1979) (Adams, J., concurring).

51. Religion and the Constitution: Free Exercise and Fairness, it should be noted here, is the first of two volumes; the second, which is due to be published shortly after this essay goes to press, is entitled Establishment and Fairness.

52. Greenawalt, , Free Exercise and Fairness, 1 Google Scholar.

53. Ibid., 256.

54. 406 U.S. 205 (1972).

55. Hamilton, , God vs. the Gavel, 113, 131Google Scholar.

56. 494 U.S. 872 (1990).

57. Sullivan, , The Impossibility of Religious Freedom, 104 Google Scholar. Feldman, although his book primarily addresses controversies surrounding the Court's establishment clause jurisprudence, notes that the central question in free exercise is whether religion should receive special treatment. He cites Smit, implicitly approving the rule in the case, but does not provide more. Feldman, Divided by God, 263 n.78.

58. Greenawalt, , Free Exercise and Fairness, 79 Google Scholar.

59. Ibid., 439–40.

60. Ibid., 179.

61. 374 U.S. 203 (1963).

62. Engel v. Vitale, 370 U.S. 421 (1962). For a critique of this pair of cases, see Pollak, Louis H., “Foreword: Public Prayers in Public Schools,” Harvard Law Review 77 (1963): 62 CrossRefGoogle Scholar.

63. 374 U.S., 225.

64. Ibid., 300. 65. See Griffin, Leslie, “‘We do not Preach. We Teach.’: Religion Professors and the First Amendment,” Quinnipiac Law Review 19 (2000): 1 Google Scholar.

66. Claude Welch, Religion in the Undergraduate Curriculum (Association of American Colleges, 1972).

67. Atkinson, David W., “Religious Studies: In Search of a Paradigm,” Religious Studies and Theology 11 (1992): 10 Google Scholar; Cherry, Conrad, Hurrying toward Zion Universities, Divinity Schools, and American Protestantism (Bloomington: Indiana University Press, 1995), 90 Google Scholar.

68. Winnifred Sullivan, of course, argues that the indeterminacy of religious life combined with the structural limitations of courts means that any attempt to define religion in law is “impossible” (hence the name of her 1995 book; see note 34 above).

69. This was a real case, Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).

70. Compare McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005), with Van Orden v. Perry, 545 U.S. 677 (2005).