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Law Culture and the Humanities[A] comprehensive resource and guide to a wide range of free exercise issues and an incisive reminder of the challenges in interdisciplinary discourse.
— Annika Thiem
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"The book takes within its gaze an astonishingly rich set of cases, problems, contexts, and variations, reaching well beyond the narrow domain of judicially enforceable constitutional principle to questions of public policy and private behavior."—Larry Sager, University of Texas
"Kent Greenawalt is a national treasure. He combines an encyclopedic knowledge of the law with a subtle understanding of the human dimensions of each of the wide range of problems that arise with respect to free exercise rights. This will immediately become the best book in print on the problems presented by religious accommodation."—Andrew Koppelman, Northwestern University
"Kent Greenawalt is a masterful guide to the range of issues and varied sources concerning free exercise, and teachers and scholars of constitution law will find his book an invaluable resource on free exercise questions."—L. Joseph Hebert, Law and Politics Book Review
"Kent Greenawalt's latest masterwork . . . is written with elegance, power, and lucidity—and filled with the kind of wit, wisdom, and Wissenschaft that [his] readers have come to expect."—John Witte, Jr., Constitutional Commentary
"[A] comprehensive resource and guide to a wide range of free exercise issues and an incisive reminder of the challenges in interdisciplinary discourse."—Annika Thiem, Law, Culture and the Humanities
"Kent Greenawalt argues for taking religion more seriously as a source of meaning in people's lives and accommodating religious freedom to the maximum amount that is consistent with a commitment to fairness."—Law & Social Inquiry
Americans should freely practice their religions, and government should not establish any religion: these are crucial principles of our liberal democracy. Although the principles themselves receive wide assent, people disagree intensely over what they signify and how they apply. Does treating religious individuals and organizations fairly mean regarding them like everyone else or giving them a mix of special benefits and disadvantages?
This book, volume 1 of Religion and the Constitution, concentrates on the free exercise of religion; a companion will focus on nonestablishment. These are of course the two main pillars in the Constitution's treatment of religion. Because issues about free exercise and nonestablishment intertwine, however, we need to examine various establishment concerns here, most notably problems raised by classifications along religious lines. Both volumes discuss the declaration in the Constitution's First Amendment that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." But in each volume we shall also consider legislative choices and claims of moral and politicalphilosophy that reach beyond constitutional constraints.
My approach to the broad subject is grounded on three fundamental assumptions. First, ideas about free exercise and nonestablishment are not reducible to any single value; a number of values count. Second, sound approaches to the state's treatment of religion cannot be collapsed into any single formula or set of formulas. For example, one pervasive issue is whether religious claims may (or must) be treated differently from analogous nonreligious claims. Against those who assert that similar treatment should always or never be required, I resist any uniform answer, arguing that a great deal depends on what kind of claim is involved. Although no ready formula is available to resolve problems about government and religion, we can identify major considerations that legislators and judges need to take into account. I sketch the most important of these considerations in a later section of this introduction, as well as outline some of the most general values or principles that underlie or motivate this book on free exercise.
Third, we can best work toward sensible approaches by addressing many discrete issues. These reveal rich variations in the state's relations with religion and show the complexity of arriving at satisfactory treatments of practical conflicts. This undertaking from the bottom up illuminates more than does a conceptual apparatus that works downward from a few abstract principles to particular applications. Thus, the strategy of both volumes is contextual, investigating the force of conflicting values over a range of legal and political issues.
This introductory chapter outlines a few free exercise problems and lays the conceptual framework for what follows.
TYPICAL FREE EXERCISE ISSUES
The most blatant affronts to people's free exercise of religion involve hardships they suffer just because of their religious beliefs and practices. Throughout history, public authorities have imposed a wide range of penalties and disabilities on dissenters from the dominant religious faith. In one modern American case, discussed in chapter 3, the City of Hialeah adopted ordinances to ban animal sacrifice. Their undoubted target was the unpopular practice of animal sacrifice by adherents of the Santeria religion.
The Hialeah case is unusual for modern liberal democracies. Legislators rarely discriminate overtly among religions or target religious practices. Rather, they adopt laws that are uncontroversial in most of their applications; the crucial issue then becomes whether legislatures or courts should create privileged exceptions that are based directly on a person's religious convictions or rest on some other standard, such as "conscience," that includes religious convictions but does not distinguish between them and similar nonreligious convictions.
Here are some illustrations. Should the government excuse religious pacifists, all pacifists, or no pacifists from a military draft? Given a general requirement that children stay in school up to the age of sixteen, should officials allow a religious group to withdraw their children at an earlier age, so they may undertake vocational training for their communal life? Should a state that prohibits use of peyote allow members of a church to ingest that drug as the center of their worship services? Should a law that forbids gender discrimination in employment leave untouched religious groups that permit only men to be clergy?
Less stark conflicts between religious claims and standard legal duties also arise. Prisoners would like to wear religious jewelry despite a prison ban on jewelry. A church wants to use its community house for a school that is forbidden by zoning regulations. An Orthodox Jewish military officer wears his yarmulke in violation of a regulation that instructs personnel not to wear headgear indoors.
Conflicts between religious convictions and general laws may be indirect rather than direct. A Sabbatarian's religion requires him to close his store on Saturday. He can comply with that obligation and with a law that requires all stores to close on Sunday, but the law and his religion combine to create economic hardship, and a temptation to disregard his religious convictions.
Yet other free exercise problems arise because the law must settle disagreements between private persons. A couple divorces. The father wants to take his daughter to his church on Sunday; the mother wants to stop him, because they agreed when they married that their children would be raised as Jewish.
These and similar problems occupy this volume. Its companion analyzes establishment questions, such as these: should the government encourage or sponsor religious practice? should state schools teach about religion? should the government support religious hospitals and schools, and, if so, under what conditions? when do efforts to "accommodate" religious practices cross over the boundary to become impermissible establishments?
BASIC VALUES AND THE RELIGION CLAUSES
Protecting free religious exercise is one undoubted and fundamental aim of the Constitution's religion clauses. Many people care deeply about their religious beliefs and practices, and they feel that their religious obligations supersede duties to the state if the two collide. These basic sentiments constitute a strong reason why governments should avoid interfering with religious participation insofar as they reasonably can. Another fundamental purpose of the religion clauses is to keep the enterprises of religion and government distinct. The state should not sponsor any particular religion; in turn, it should not be controlled by religious authorities.
I should perhaps say at the outset that I believe strongly in the major values that lie behind free exercise and nonestablishment. People should be free to adopt religious beliefs and engage in religious practices because that is one vital aspect of personal autonomy, and because recognition of that freedom is more conducive to social harmony in a modern society than any alternative. I believe, further, that most people experience some transcendent dimension in their lives and that, despite the unavailability of decisive evidence, that experience reflects some objective reality. Whether the government should involve itself in promoting religious values may be arguable, but my own view is that personal autonomy is most fully recognized and the flourishing of religion itself is best served if the government does not sponsor religious understandings and practices (this complex subject is mainly the concern of volume 2).
Many readers will disagree with some of these value judgments of mine. No doubt, what follows is influenced to some degree by my own fundamental understandings, but I am aiming to write in a way that does not depend directly on them. I will be making claims that rest on the country's political and legal traditions and on undeniable facts about its present condition, most particularly its religious diversity. No reader can dismiss claims about religious exercise with the observation that religious views are silly; no reader can dismiss claims about nonestablishment with the assertion that the true religious understanding is easily acquired. A serious person trying to grapple with the state's treatment of religion has to undertake a much more arduous effort to distill the nature of our country's traditions and of sound practice in modern political democracies.
These values of free exercise and disestablishment are broadly compatible, indeed reinforcing; and those who favored disestablishment at the country's founding believed that it promoted religious liberty. A government that awards the high officials of one religion seats in the legislature, uses tax funds to pay its clergy, and teaches its doctrines in public schools impinges on the religious exercise of dissenters. Although nonestablishment still promotes free exercise across a wide span of subjects, modern social life also throws up situations in which values of free exercise and nonestablishment lie in tension or conflict. Should the government grant its workers who worship on Saturday that day off? Doing so would undoubtedly assist their exercise of religion; but the cost may be to "establish," or at least favor, their religious motivations in comparison with nonreligious reasons, such as time with family at home, that lead other workers to want free Saturdays.
Such conflicts of value illustrate how concerns about equality and fairness pervade religion cases. Are Saturday worshipers relevantly equal or unequal to workers who want to spend Saturdays with their families? Much turns on the respects in which people are significantly equal to each other, and on when they deserve the same treatment. Such inquiries, with their implication that unequal treatment is unfair, are a major aspect of problems about religion and the state. Because arguments about equality can confuse, a few clarifications are helpful.
A conclusion that people should get "equal treatment" may flow irresistibly from the application of an independent standard or reflect a more fundamental notion about the equality of citizens. If one aspect of the free exercise of religion is a principle that governments cannot compel individuals to attend church, all people will equally have the right not to be compelled; but their entitlement to equal treatment simply follows from the nature of the right against compelled religious exercise. Claims about individual equality are redundant here, doing "no work."
A more potent concept about equal treatment is that governments must recognize an equality of persons. Found in the Declaration of Independence, this ideal has grown in influence during the last two centuries. Although achievement has yet to match aspiration, political societies have rejected one barrier after another-class, race, ethnic origin, gender, sexual preference, physical disability-to the equal treatment of citizens. The question whether a law touching religious practice treats citizens as political equals may reach beyond the specific values of free exercise and nonestablishment.
Some equality claims about religion challenge specific lines of inclusion and exclusion that distinguish among categories of people. But other claims assert that a deep principle of equality demands differences in treatment that respond to variations in capacities, beliefs, or practices. (To take a noncontroversial, nonreligious, illustration, people now accept the deep principle that students suffering learning impairments should have opportunities equal to those of other students; this value is implemented by giving these students benefits, such as tutoring, not made available to all students.) One perspective on how equality should figure in respect to religion is that benefits for religious groups under the Free Exercise Clause should offset disadvantages under the Establishment Clause. Very often, proponents of competing resolutions of political and legal problems enlist the value of equality in their behalf; we shall try to discern which particular kinds of equality are most salient for the fair treatment of religious individuals and groups.
MULTIPLE VALUE THEORIES AND THE PROBLEM OF COHERENCE
When theorists search for a single overarching value to explicate a legal subject, almost inevitably they omit too much or provide an overarching value that is so inclusive it yields little help in resolving practical problems. Within most legal domains, multiple values, which sometimes conflict with one another, are important. Even if we ignore the plurality of values that the concepts of free exercise, nonestablishment, and equality each embrace on their own, we see that none of these concepts can underlie a single value approach to the religion clauses. Nonestablishment cannot be the overarching value, because it is largely a means to serve free exercise. A thesis that every valid consideration reduces to free exercise is more plausible. But inquiring only whether a law threatens the religious liberty of citizens would neglect both some reasons for nonestablishment and the independent value of equality. A law might promote religious freedom at the expense of some unacceptable inequality among groups of citizens. And one worry about establishment is that religious leaders will have too much political authority, a concern about political integrity that is not exclusively about the value of citizens' religious freedom.
One reason why equality cannot serve as the single overarching value is that we need to attend to the values underlying religious freedom and nonestablishment to determine which equalities matter most. A second reason is that some sacrifices in equality may be warranted to serve those other values.
Many situations in which multiple values are at stake involve difficult trade-offs that are not resolvable by any higher metric that gives much practical assistance. This truth has implications for the coherence we can expect in normative evaluation. Two people sharing the same theoretical approach may disagree about how to resolve a particular problem, and each may have difficulty explaining the exact weighting of relevant considerations that leads her to prefer the outcome she does. Someone who conceives such nuances of difference in normative appraisal will be modest about the opportunities for our practical reason to produce demonstrably correct conclusions for troublesome issues. Recognizing that the majority opinions of American courts often suffer the further liability of being produced by various compromises, such a person will hesitate to condemn judicial work as incoherent or irrational, a charge frequently leveled against the Supreme Court's church-state jurisprudence.
A person who believes that multiple values bear on the resolution of major social and legal issues will insist on contextual evaluation. He may feel confident about which features matter most and even about particular overall assessments, without being able to offer a set of abstract principles to demonstrate the correctness of his judgments. This book's emphasis on context allows the reader to understand troubling conflicts and undertake his own critical examination of them.
This is not to suggest that the book is rootless or that it takes a radically relativist stand on moral issues. Moreover, although no simple formulas are available to resolve difficult questions about free exercise, we shall find that a similar range of considerations or factors figures for many problems. In what we might call the standard situation, to which a number of chapters are devoted, the government imposes a general constraint, and the issue is whether an exception should be made for those who have an objection based on religious convictions or on broader grounds that include religious convictions. Chapter 4, on conscientious objection, chapter 5, on use of proscribed drugs in worship services, and chapter 6, on claims to withdraw children from school at the age of fourteen, discuss variations on this standard situation that the Supreme Court has addressed. In contrast to those illustrations, a government rule, as I have noted, may generate a less direct conflict with religious exercise. If a state requires that businesses close on Sunday, that requirement can penalize those whose religion requires that they not work on Saturday.
Excerpted from Religion and the Constitution by Kent Greenawalt Copyright © 2006 by Princeton University Press. Excerpted by permission.
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CHAPTER 1: Introduction 1
CHAPTER 2: History and Doctrine 11
CHAPTER 3: Freedom from Compelled Profession of Belief, Adverse Targeting, and Discrimination 35
CHAPTER 4: Conscientious Objection to Military Service 49
CHAPTER 5: Religious Exemptions and Drug Use 68
CHAPTER 6: Free Exercise Objections to Educational Requirements 86
CHAPTER 7: Sincerity 109
CHAPTER 8: Saying What Counts as Religious 124
CHAPTER 9: Controlled Environments: Military and Prison Life 157
CHAPTER 10: Indirect Impingements: Unemployment Compensation 172
CHAPTER 11: Sunday Closing Laws and Sabbatarian
Business Owners 184
CHAPTER 12: Government Development of Sacred Property 192
CHAPTER 13: Difficult Determinations: Burden and
Government Interest 201
CHAPTER 14: Land Development and Regulation 233
CHAPTER 15: Confidential Communications with Clergy 246
CHAPTER 16: Settling Disputes over Church Property 261
CHAPTER 17: Wrongs and Rights of Religious Association: The
Limits of Tort Liability for Religious Groups and
Their Leaders 290
CHAPTER 18: Employment Relations: Ordinary Discrimination and Accommodation 326
CHAPTER 19: Employment Relations: Harassment 359
CHAPTER 20: Rights of Religious Associations: Selectivity 377
CHAPTER 21: Medical Procedures 396
CHAPTER 22: Child Custody 421
CHAPTER 23: Conclusion (and Introduction) 439