Wrestling With God: The Courts' Tortuous Treatment of Religion

✍ Scribed by Patrick M. Garry

• Publisher: The Catholic University of America Press
• Year: 2006
• Tongue: English
• Leaves: 241
• Category: Library

✦ Synopsis

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.

✦ Table of Contents

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