Religious Liberty in America: Political Safeguards / Edition 1

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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.

Author Biography: Louis Fisher is Senior Specialist in Separation of Powers at the Congressional Research Service, Library of Congress. Among his books are Presidential War Power and Constitutional Conflicts Between Congress and the President, both from Kansas.

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Editorial Reviews

Allen D. Hertzke
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.
Clyde Wilcox
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.
Derek H. Davis
A remarkably fresh and stimulating book that deserves a wide readership.
Library Journal
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.
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Product Details

  • ISBN-13: 9780700612024
  • Publisher: University Press of Kansas
  • Publication date: 9/1/2002
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 266
  • Product dimensions: 6.38 (w) x 8.96 (h) x 0.84 (d)

Table of Contents

Acknowledgments
Note on Citations
Introduction 1
1 Who Protects Minority Rights? 4
Conventional Views 4
Early Lessons (1789-1861) 6
After the Civil War 13
Prohibiting Polygamy 20
Twentieth-Century Disputes 27
2 The Struggle for Religious Liberty 32
Colonial Precedents 32
Locke's Influence 36
The Virginia Statute of 1786 39
Meeting at Philadelphia 43
Activity by the First Congress 48
The Bill of Rights 54
3 The Religious Lobby 58
Madison's Factions 58
Religious Activism 60
Organizing for Action 71
4 Conscientious Objectors 82
The Colonies and Early State Governments 82
The First Congress 84
Civil War Exemptions 87
World War I Experiences 91
Broadening the Exemption in 1940 96
Belief in a Supreme Being 99
Current National Policy 103
5 Flag Salutes and Yarmulkes 105
Compulsory Flag Salute 105
The Yarmulke Case 114
6 School Prayer 123
Misunderstanding the Ruling 123
Reagan Initiatives 132
Equal Access Act 135
Local Noncompliance 138
Moment of Silence 139
Clinton's 1995 Memo 140
Continued Challenges 142
7 Indian Religious Freedom 147
Propagating the Gospel 147
Indian Removal 151
Grant's Peace Policy 155
The Stirrings of Reform 158
Protective Legislation 163
8 Religious Use of Peyote 175
Peyotism 175
The Case of Al Smith and Galen Black 183
The Religious Freedom Restoration Act (RFRA) 189
9 Statutory Exemptions 202
Tax Exemptions 202
Prohibition Statutes 209
Exemptions from Social Security 213
Federal Discrimination Laws 217
Labor Laws 221
Animal Slaughter 222
Conclusions 227
Bibliography 235
Index of Cases 255
Subject Index 261
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