Religious Liberty in America: Political Safeguards / Edition 1

by Louis Fisher

Overview

It is often assumed that the judiciary—especially the Supreme Court—provides the best protection of our religious freedom. Louis Fisher, however, argues that only on occasion does the Court lead the charge for minority rights. More likely it is seen pulling up the rear. By contrast, Congress frequently acts to protect religious groups by exempting them from general laws on taxation, social security, military service, labor, and countless other statutes. Indeed, legislative action on behalf of religious freedom is an American success story, but one that renowned constitutional authority Fisher argues has been poorly understood by most of us.

Taking in the full span of American history, Fisher demonstrates that over the course of two centuries of American government Congress has often been in the forefront of establishing and protecting rights that have been neglected, denied, or unrecognized by the Court-and that statutory provisions far outstrip, in both number and importance, the court cases that have expanded religious rights.

In this concise and insightful book, Fisher presents a series of important case studies that explain how Supreme Court rulings on religious liberty have been challenged and countermanded by public pressures, legislation, and independent state action. He tells how religious groups interested in securing the rights of conscientious objectors received satisfaction by taking their cases to Congress, not the courts; how public uproar over a 1940 Supreme Court ruling sustaining compulsory flag-salutes resulted in a court reversal; and how Congress intervened in a 1986 ruling upholding a military prohibition of skullcaps for Jews. By describing other controversies such as school prayer, Indian religious freedom, the religious use of peyote, and statutory exemptions for religious organizations, Fisher convincingly demonstrates that we must understand the political and not just the judicial context for the safeguards that protect religious minorities.

As this book shows, the origin and growth of an individual's right to believe or not believe—and the securing of that right—has occurred almost entirely outside the courtroom. Religious Liberty in America persuasively challenges judicial supremacists on church-state issues and provides a highly readable introduction for all students and citizens concerned with their right to believe as they wish.

Product Details

ISBN-13:	9780700612024
Publisher:	University Press of Kansas
Publication date:	09/30/2002
Pages:	278
Product dimensions:	6.00(w) x 9.00(h) x (d)

Table of Contents

Acknowledgments

Note on Citations

Introduction

1. Who Protects Minority Rights?

-Conventional Views

-Early Lessons (1789-1861)

-After the Civil War

-Prohibiting Polygamy

-Twentieth-Century Disputes

2. The Struggle for Religious Liberty

-Colonial Precedents

-Locke’s Influence

-The Virginia Statute of 1786

-Meeting at Philadelphia

-Activity by the First Congress

-The Bill of Rights

3. The Religious Lobby

-Madison’s Factions

-Religious Activism

-Organizing for Action

4. Conscientious Objectors

-The Colonies and Early State Governments

-The First Congress

-Civil War Exemptions

-World War I Experiences

-Broadening the Exemption in 1940

-Belief in a Supreme Being

-Current National Policy

5. Flag Salutes and Yarmulkes

-Compulsory Flag Salute

-The Yarmulke Case

6. School Prayer

-Misunderstanding the Ruling

-Reagan Initiatives

-Equal Access Act

-Local Noncompliance

-Moment of Silence

-Clinton’s 1995 Memo

-Continued Challenges

7. Indian Religious Freedom

-Propagating the Gospel

-Indian Removal

-Grant's Peace Policy

-The Stirrings of Reform

-Protective Legislation

8. Religious Use of Peyote

-Peyotism

-The Case of Al Smith and Galen Black

-The Religious Freedom Restoration Act (RFRA)

9. Statutory Exemptions

-Tax Exemptions

-Prohibition Statutes

-Exemptions from Social Security

-Federal Discrimination Laws

-Labor Laws

-Animal Slaughter

Conclusions

Bibliography

Index of Cases

Subject Index

Editorial Reviews

For a long time we've needed someone to challenge the judicial supremacists on church-state issues and I'm thrilled that Fisher has done so in this book. . . . A wonderfully bold and important work that is sure to make a splash in the fields of religion, law, and politics.

Allen D. Hertzke

This book is a rare treat. It is comprehensive enough to serve as a reference on legislative and judicial policymaking on church-state matters. Yet it is also a lively read, full of fascinating detail on the history of church-state issues.

Clyde Wilcox

A remarkably fresh and stimulating book that deserves a wide readership.

Derek H. Davis

Like former Supreme Court Chief Justice Earl Warren, Fisher (Library of Congress; Presidential War Power) recognizes that the judiciary has a limited role in safeguarding individual rights. Here he discusses the historical role of the legislative and judicial branches of government in relation to church-state matters. Presenting "case studies" on a variety of topics, including conscientious objectors, school prayer, and peyote in religious services, Fisher explains how Supreme Court rulings on religious liberty have been challenged and countermanded by public pressure, legislation, and state action. Early pioneers did not depend on court decisions for preserving religious liberty, but the legislative process and the activity of the First Congress assisted in erecting a wall between church and state. Fisher admits that he does not cover every topic on religious liberties but gives sufficient evidence to support the idea that we, the people, and not the judiciary provide the safeguard to religious practices. A good overview of the history of religious law in America for academic religious and law collections.-Leo Kriz, West Des Moines P.L., IA Copyright 2002 Cahners Business Information.

Library Journal

"Fisher builds a persuasive case for legislative primacy in ensuring religious freedom. . . . Courts have too often been privileged in America’s narratives about religious liberty, and Fisher’s careful work broadens our perspective."—Journal of Religion

"Fisher believes it an unfounded notion that the judiciary is the major protector of religious freedom. . . . He has presented cogent arguments . . . "—Journal of Church and State

"A briskly paced and lucid study. . . . A perceptive contribution to our understanding of how protections for religious liberty have emerged from the give-and-take between the legislative and judicial branches of government."—Journal of American History

"An excellent account of legislative and judicial policymaking on church-state matters, with the somewhat surprising conclusion that the judiciary may be the largest obstacle in the struggle for religious freedom and minority rights."—Conscience

"In this book, Fisher challenges the conventional wisdom that the courts are the primary protectors of individual liberty. In a remarkable survey of several of the controversies over religious liberty in America, Fisher shows how the courts have often lagged behind legislatures in providing protection for minority religious expression. He argues that the political process has offered better protection than the judiciary. Fisher’s book is at once a fascinating story of the development and protection of religious liberty in America and an insightful primer on the Constitution’s First Amendment Religion clauses. . . . Fisher’s story is one that citizens from both sides of the political spectrum will want to read. His lesson is one that we all will want to remember: ‘Who protects minority rights? In large measure, you do.’"—Virginia Quarterly Review

". . . By challenging judicial idolatry in constitutional law, Fisher’s book opens an important avenue for dialogue."—First Things

“For a long time we’ve needed someone to challenge the judicial supremacists on church-state issues and I’m thrilled that Fisher has done so in this book. . . . A wonderfully bold and important work that is sure to make a splash in the fields of religion, law, and politics.”—Allen D. Hertzke, coauthor of Religion and Politics in America

“This book is a rare treat. It is comprehensive enough to serve as a reference on legislative and judicial policymaking on church-state matters. Yet it is also a lively read, full of fascinating detail on the history of church-state issues.”—Clyde Wilcox, author of Onward Christian Soldiers: The Religious Right in American Politics

“A remarkably fresh and stimulating book that deserves a wide readership.”—Derek H. Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor University

From the Publisher