Vol. 13 No. 5 (May 2003)

 

RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS, by Louis Fisher. Lawrence, Kans.: University Press of Kansas, 2002. 266 pp.  Cloth $35.00. ISBN: 0-7006-1201-7. Paper $16.95. ISBN 0-07006-1202-5.

 

Reviewed by Gregg Ivers, Department of Government, American University. Email: ivers@american.edu.

 

Louis Fisher is sui genersis in the field of American public law. Over the past three decades or so, Fisher has written on nearly every topic of importance in the field of constitutional law and politics, and done so with remarkable clarity and scholarly precision. Certain subjects, such as the separation of powers, executive-legislative conflict and the constitutional exercise of executive authority, have merited book length attention from Fisher.  Literally hundreds of articles from Fisher’s pen addressed topics ranging from the legislative veto to the congressional investigation process to the difficulties of constitution-making in the still-emerging Eastern and Central European democracies. As if that were not enough, Fisher continues to publish a popular constitutional law casebook series.  And this does not even include Fisher’s countless appearances before congressional committees to provide testimony on topics of constitutional and political import, public addresses here and abroad—or his work as the research director of the House Iran-Contra Committee in 1987, when that constitutional crisis was in full-bloom.  There is much, much more, but there is not the time.

 

What makes Fisher so unique is not just his peerless record and impeccable reputation but the fact that he has cast such an enormous influence on the field from outside a formal academic setting. Since 1970, Fisher has served as a specialist in separation of powers for the Congressional Research Service (CRS) in Washington, D.C. Although Fisher has taught part-time here and there at various universities, including my own, it is from his unique vantage point at the CRS – at once inside the political process yet distant enough for reflection and systematic observation – that he has developed the theme that pervades all his work, regardless of topic or length, and that is to remind scholars, politicians and anybody else that constitutional interpretation is not the exclusive province of the courts. For Fisher, constitutional interpretation and the making of constitutional law is a dynamic enterprise, one stemming from dialogue and action among the people, in their sovereign capacity, their political institutions and the courts.

 

Fittingly, this theme is prevalent throughout Fisher’s most recent book, RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS, in which he argues that the development of religious freedom for minorities in the United States owes more to the sensibilities of the majority branches in government than to the courts. “Though it may seem counterintuitive,” Fisher writes, “the regular political process has safeguarded the religious freedom of minorities as well as – and often better than – the courts” (p. 1). Fisher’s core argument does, as he suggests in the opening sentence of his book, run “against the grain” (p. 1). He is correct when he says that most students of the subject believe that the courts, and in particular the Supreme Court, have had a much more defining role than the elected branches in protecting the rights of religious minorities in the United States.

 

Fisher begins by examining precedents established during the colonial period, the founding era (1776-1791) and the formative years of the early Republic in which elected branches at different levels provided legal protection for religious claims.  Fisher also points out that Congress took a major step in the cause of religious freedom by prohibiting the national government, through the First Amendment, from making any law “respecting an establishment of religion or prohibiting the free exercise thereof.” And while Fisher acknowledges that the Religion Clauses, like the other major provisions of the First Amendment – as well as the Bill of Rights more generally – bound only the national government and not the states, he does not, curiously, pursue the point that the states, unencumbered by the prohibition on congressional action, often tailored their laws to serve the need of religious majorities, not religious minorities.  Catholics, Jews and many other denominations did not enjoy the same rights as Protestant believers. Nor would they, arguably, until the Supreme Court entered the dialogue over the meaning of the First Amendment in the mid-20th century.  Indeed, as Fisher points out, the Court’s first major decision defending the interests of a religious minority came in 1925, when, in PIERCE v. SOCIETY OF SISTERS, the justices ruled that states could not effectively outlaw private religious education by mandating public school attendance. 

 

Even then, however, the Court did not rely upon the Religion Clauses in reaching that conclusion. Instead, it found in the Due Process Clause of the Fourteenth Amendment a substantive liberty allowing parents to direct the education of their children. In the end, Fisher’s survey of legislative activity during the 19th and early 20th century designed to protect the rights of religious minorities does not really offer up any persuasive evidence to support his thesis. Religious groups were certainly involved in many righteous causes that were not terribly popular during that time – abolition, temperance, conscientious objection, peace movements and so on. But on matters more directly related to the equal status of religious minorities, the Protestant majority deferred to the status quo precisely because it was the status quo.  By the turn of the 20th century, less than five percent of all Americans identified themselves as belonging to a non-Christian faith; well over three-fourths considered themselves Protestants.  The nation’s public schools, civic institutions and politics were all steeped in the values of Protestant Christianity. Religious minorities, including Catholics, neither felt the need nor had the leverage to challenge the way things were.  Indeed, until the Court, in the 1940s, began to dismantle the idea that the First Amendment protected the rights of religious majorities in the states to govern as they saw fit, the United States, myth and rhetoric to the contrary, was very much a Protestant Christian nation (Feldman, 1997).

 

Fisher’s argument finds its way to more solid ground when he examines several areas of law and policy that have been the subject of litigation and legislative activity in the 20th century.  Specifically, Fisher examines conscientious objection, the compulsory flag salute and the right of Jewish servicemen to wear yarmulkes in uniform (curiously grouped in one chapter), school prayer, Indian religious freedom, the religious use of peyote, and statutory exemptions for religious individuals from laws that apply to the general population.  Fisher points out numerous examples, from World War I to the present, when state legislatures and Congress established rights for religious minorities that the Court refused to recognize. In particular, Fisher describes the particularly dismal record of the courts on matters relating to Indian religious rights and how Congress and state legislatures have afforded protection for Indian worship and tradition that the judiciary has not. 

 

Most noteworthy is his discussion of the fallout from EMPLOYMENT DIVISION OF OREGON v. SMITH (1990), a decision that turned settled doctrine involving free exercise claims against laws applying to the general population on its head. An unprecedented coalition of religious and civil liberties groups came together to lobby Congress for what became the RELIGIOUS FREEDOM RESTORATION ACT OF 1993 (RFRA), which President Clinton signed into law in a full Rose Garden ceremony, to restore the jurisprudential standard for the type of free exercise claims eradicated in SMITH. Four years later, the Court, in CITY OF BOERNE v. FLORES (1997), invalidated RFRA on the grounds that it intruded upon the power of the courts to offer the final words of matters of constitutional interpretation. Perhaps there is no better example in support of Fisher’s argument that the courts are an important but not final word on what the Constitution means. Congress had acted with broad support from many organizations that represented religious denominations that were in no way threatened by SMITH’s holding. In fact, every single free exercise decision handed down by the Court since 1940 has involved a claim brought by a religious minority. In some cases, most notably WISCONSIN v. YODER (1972), CHURCH OF LUKUMI BABALU EYE v. HIALEAH (1993) and WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK v. VILLAGE OF STRATTON (2002), the Court has come to the defense of minority religious free exercise claims. But, as Fisher correctly points out, just as often the Court has left religious minorities hanging, putting them in the position of having to resort to the legislative process for protection. Congress acted again after the Court’s decision in BOERNE, passing, in 2000, the RELIGIOUS LIBERTY PROTECTION ACT, a law that did much of what RFRA did. This time around, Congress anchored its justification for the law in the Commerce Clause rather than in its Section 5 power under the Fourteenth Amendment. The law, however, was never signed.

 

Fisher’s thesis is probably the least persuasive when he turns his attention to what has been perhaps the most controversial and well-known area of church-state conflict of the last forty years – the school prayer conflict. Despite a consistent line of Supreme Court decisions dating back to ENGEL v. VITALE (1962), states, localities and individual schools have continued to challenge the fundamental holding of that landmark case, sometimes head-on, as in WALLACE v. JAFFREE (1985), or in more roundabout fashion, as in LEE v. WEISMAN (1992) and, most recently, in SANTE FE SCHOOL DISTRICT v. DOE (2001). Even as the Court has become more permissive on the power of government to support religion in symbolic terms or provide financial assistance to parochial schools and institutions, the justices have held firm on school prayer. One need not be a judicial supremacist to conclude that the Court has done much more than the majority branches to protect the rights of religious minorities here.

 

In the end, Fisher is right when he says that the courts have not always come to the defense of religious minorities. He is also right when he says that the legislative branches – and in some cases executive branch leadership – have done much to protect the right of religious minorities in the absence of favorable judicial rulings. But to conclude that the courts have lagged behind majority sensibilities on the need to protect the rights of religious minorities is not as convincing. A “realist” understanding of the rights of religious minorities – a phrase that Fisher uses throughout his book – must acknowledge that the disposition of the Court, Congress, state legislatures, school boards, and so on, has much to do with who takes the lead. Over the last ten years or so, the Court has clearly moved away from the separationist impulses that animated its church state jurisprudence from the 1940s until the mid-1980s. Just last year, for example, the Court held, for the first time, in ZELMAN v. SIMMONS-HARRIS (2002), that state funds could be used to pay religious school tuition. The year before, in MITCHELL v. HELMS (2001), the Court ruled that federal funds could be used by religious schools to pay for computers and other auxiliary equipment, even if they were used to support religious teaching. Here, we have an example of the Court upholding policies that, for many religious minorities and even some in the religious majority, breached the demarcation line of proper church-state relations.

 

Most recently, President George W. Bush’s support for “charitable choice” in the administration of federal social welfare services – allowing religious institutions to receive funds for drug counseling, job training, after-school programming and so on – has divided religious groups as few issues have in the last half-century. Fisher offers a brief mention of the president’s support for providing direct funding to churches, as opposed to church-affiliated institutions, to provide social services. Unfortunately, the need to get his book to press – the narrative ends shortly after the September 11th, 2001, terrorist attacks – did not allow Fisher to follow the story.  Since then, the president’s grandiose ambitions to make religion a partner in the administration of government services have been scaled back dramatically. The opposition did not just come from civil liberties groups and minority religious communities, but representatives of major Protestant denominations. Even as the courts have established more permissive rules to allow government to fund religion, many states have refused to jump on the bandwagon.  The response from the states to the Court’s decision to all but clear the path for tuition vouchers in ZELMAN has not been enthusiastic. Vouchers make for popular political rhetoric, but the public seems to remain uneasy about making scarce public resources available for religious schools.

 

Louis Fisher has provided yet another wonderful addition to the literature of constitutional politics. To find points of disagreement with Fisher’s thesis and some of his arguments in no way diminishes the first-rate scholarship in RELIGIOUS LIBERTY IN AMERICA. Although too advanced for undergraduate use, Fisher’s book will find a comfortable place in law school seminars and advanced graduate courses in political science and constitutional studies. Nobody thinks and writes about constitutional law like Louis Fisher. And after all these years nobody does it better.

 

REFERENCES:

Feldman, Stephen M. 1997. PLEASE DON’T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE. New York: New York University Press.

 

CASE REFERENCES:

CHURCH OF LUKUMI BABALU AYE v. HIALEAH, 508 U.S 520 (1993)

 

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997)

 

EMPLOYMENT DIVISION OF OREGON v. SMITH, 494 U.S. 872 (1990)

 

ENGEL v. VITALE, 370 U.S. 421 (1962)

 

LEE v. WEISMAN, 505 U.S. 577 (1992)

 

MITCHELL v. HELMS, 530 US 793 (2000)

 

PIERCE v. SOCIETY OF SISTERS, 268 U.S. 510 (1925)

 

SANTE FE INDENPDENT SCHOOL DISTRICT v. DOE, 530 U.S. 290 (2000)

 

WALLACE v. JAFFREE, 472 U.S. 38 (1985)

 

WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK v. VILLAGE OF STRATTON, 122 S.Ct. 2080 (2002)

 

WISCONSIN v. YODER, 406 U.S. 205 (1972)

 

ZELMAN v. SIMMONS-HARRIS, 122 S. Ct. 2460 (2002)

 

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Copyright 2003 by the author, Gregg Ivers.