Wrestling with God : The Courts' Tortuous Treatment of Religion

The relationship between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence of religion in American public life. This anxiety, in turn, leads to more litigation, as opposing parties constantly try to influence the fluctuating direction of the courts' religion doctrines. Courts have often treated the two religion clauses of the First Amendment as contradictory, with the free exercise clause used to protect religious practices and the establishment clause employed to limit the public expression of religious beliefs. Wrestling with God not only reconciles the relationship between the two clauses but also distinguishes them in terms of their respective purposes. Whereas the exercise clause focuses on individual freedom, the establishment clause addresses the institutional autonomy of religious organizations. Under this distinction, many cases currently falling under the establishment clause—e.g., prayer in the schools—should instead be governed by the exercise clause. Unlike many contemporary interpretations of the establishment clause, the model offered in Wrestling with God views the clause not as a check on religion but as a protection against a specific kind of religious coercion—the kind that results from governmental interference with the freedom of religious institutions. As Patrick M. Garry skillfully argues in Wrestling with God, the establishment clause does not exist for the benefit of a secular society; it exists for those religious institutions in which individuals seek to practice their beliefs. Contents Introduction: A Convoluted Maze of Judicial Doctrines 1. Inequality among Equals Disparities in the Judicial Treatment of Speech and Religion Religious Exercise Is Not Diminished by the Establishment Clause Speech Claims Are Scrutinized More Carefully Than Religion Claims The Differing Placement of Burdens Differing Treatments of Offensiveness Mere Risk versus Likely Probability The Free-Speech Strategy in Religion Cases Consequences of the Free-Speech Strategy 2. Turning the First Amendment against Religion Building the Wall of Separation The Lemon Legacy 3. Judicial Experiments in Establishment Doctrines A Confused Jurisprudence Pitfalls of the Endorsement Test 4. The Neutrality Compromise The Neutrality Approach to Religion Cases Neutrality Governs Both Exercise and Establishment Cases Persisting Formalisms Drawbacks of the Neutrality Doctrine 5. The Historical Relationship between Religion and Government Eighteenth-Century Views on the Need for Religion in a Democracy Government Recognition and Support of Religion The Public Expression of Religious Views The Eighteenth-Century Understanding of Establishment The Tradition of Nonpreferential Aid to Religion The Framers’ View of Religion’s Public Role Drafting and Debating the First Amendment The Postratification Environment Remaining Vestiges of Religion’s Public Role 6. The Cultural Suspicion The Critics Judicial Reflections of the Hostility toward Religion The Cultural Rebellion against Religion The Politicization of Religion The Secularization of America’s Civil Religion 7. A Theory of the Establishment Clause The Unitary Nature of the Religion Clauses The Exercise Clause Is the Primary Clause Distinctions between the Exercise and Establishment Clauses The Establishment Clause and Accommodation Secular Society Is Not the Focus of the Establishment Clause 8. If Not Neutrality, Then What? The Case for Nonpreferential Favoritism of Religion Nondiscriminatory Aid to Religion The Special Value of Religion Reasons to Favor Religion The Accommodation Doctrine and Nonpreferentialism The Logic of Accommodation Refutes Neutrality The Danger of Nonpreferential Aid Conclusion Notes Index Annotation The Relationship Between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence of religion in American public life. This anxiety, in turn, leads to more litigation, as opposing parties constantly try to influence the fluctuating direction of the courts' religion doctrines. Courts have often treated the two religion clauses of the First Amendment as contradictory, with the free exercise clause used to protect religious practices and the establishment clause employed to limit the public expression of religious beliefs. Wrestling with God not only reconciles the relationship between the two clauses but also distinguishes them in terms of their respective purposes. Whereas the exercise clause focuses on individual freedom, the establishment clause addresses the institutional autonomy of religious organizations. Under this distinction, many cases currently falling under the establishment clause--e.g., prayer in the schools--should instead by governed by the exercise clause. Unlike many contemporary interpretations of the establishment clause, the model offered in Wrestling with God views the clause not asa check on religion but as a protection against a specific kind of religious coercion--the kind that results from governmental interference with the freedom of religious institutions. As Patrick M. Garry skillfully argues in Wrestling with God, the establishment clause does not exist for the benefit of a secular society; it exists for those religious institutions in which individuals seek to practice their beliefs "Courts have often treated the two religion clauses of the First Amendment as contradictory, with the free exercise clause used to protect religious practices and the establishment clause employed to limit the public expression of religious beliefs. Wrestling with God not only reconciles the relationship between the two clauses but also distinguishes them in terms of their respective purposes. Whereas the exercise clause focuses on individual religious freedom, the establishment clause addresses the institutional autonomy of religious organizations. Under this distinction, many cases currently falling under the establishment clause - e.g., prayer in the schools - should instead be governed by the exercise clause." "Unlike many contemporary interpretations of the establishment clause, the model offered in Wrestling with God views the clause not as a check on religion but as a protection against a specific kind of religious coercion - the kind that results from governmental interference with the freedom of religious institutions. As Patrick M. Garry argues in Wrestling with God, the establishment clause does not exist for the benefit of a secular society; it exists for those religious institutions in which individuals seek to practice their beliefs."--Jacket An inequality among equals Turning the First Amendment against religion Establishment doctrines that have fallen short The neutrality compromise The historical experience with religion and government The cultural susp[i]cion A simplified theory of the establishment clause If not neutrality, then what? : the case for nonpreferential favoritism of religion.