God vs. the Gavel: Religion and the Rule of Law

Vol. 15 No.11 (November 2005), pp.963-967

GOD vs. THE GAVEL: RELIGION AND THE RULE OF LAW, by Marci A. Hamilton. New York: Cambridge University Press, 2005. 408pp. Hardback. $28.00/ £16.99. ISBN: 0-521-85304-4.

Reviewed by Kevin R. den Dulk, Department of Political Science, Grand Valley State University. Email: dendulkk [at] gvsu.edu

Marci Hamilton’s GOD vs. THE GAVEL will have a familiar ring to observers of the Supreme Court’s recent efforts to define the nature and scope of religious freedom. Her book is an extensive brief in favor of the well-known – and in many quarters infamous – U.S. Supreme Court decision in EMPLOYMENT DIVISION v. SMITH, which held that religiously-motivated conduct had no exemption from neutral, generally applicable law. That decision was a lightning rod for criticism, with prominent voices from across the ideological spectrum rejecting the Court’s reasoning as an invitation to greater governmental intrusion into religious life. Although at certain key points she resorts to assertions rather than arguments, Hamilton’s book is a lively, far-reaching, and relatively rare counterattack against SMITH’s numerous critics, and for that reason alone it is worth reading.

Hamilton’s argument in GOD vs. THE GAVEL is divided in two parts: first, an extensive survey of numerous examples of what she describes as religion-based behaviors that have resulted in harm to others with little or no legal accountability; and second, a constitutional and historical argument for subjecting such behaviors to the rule of law. In contrast to pre-SMITH legal doctrine, which held that the state may burden religion only for “compelling” reasons, Hamilton contends that “most law should govern religious conduct, with the only exception being when the legislature has determined that immunizing religious conduct is consistent with public welfare, health, and safety” (p.8). Her claim about the central role of the legislature, rather than the judiciary, in defining the boundaries of religious freedom is perhaps the most contestable and controversial assertion in the book.

Hamilton, who portrays her argument as a “180 degree” change from her earlier views, writes with the zeal and certitude of a new convert. She describes her previous support for a broader scope to religious freedom, including the pre-SMITH “compelling interest” doctrine, as “patently absurd” and “a product of the ivory tower” (p.274). Her conversion was triggered by her “education,” as she puts it, in the trenches of religious freedom litigation, which gave her a keen understanding of the harm religiously-motivated individuals and institutions can cause. The concept of harm, as well as what she variously calls the “common good,” “public good,” or “public interest,” play key roles in her new constitutional faith. For Hamilton, the public interest and avoidance of harm trump religious freedom whenever public policy and religion conflict. [*964]

Indeed, Hamilton’s concern with religion-based harm is so deep that she devotes Part One of the GOD vs. THE GAVEL, which comprises nearly two-thirds of the book, to a litany of religion at some of its worst moments. While she acknowledges that religion can be socially beneficial, she is convinced that Americans are reflexively deferential to religion and perceive it – wrongly, of course – as an “unalloyed good.” She trots out a host of metaphors, some of which border on the condescending, to describe this American myth: it is a pollyannish assumption (p.274); an “adolescent” belief (p.305); a “romantic” attitude (p.3). She insists that this “widespread” yet “baseless” presupposition is at the root of the American willingness to allow generous freedoms to religious institutions and individuals, even to the point of turning away when those religious entities harm others. She takes as her purpose “to persuade Americans to take off the rose-colored glasses” so they can see the need to hold religion accountable for the harm it can cause (p.3).

One might quibble with Hamilton about this claim about American attitudes toward religion in general. The roots of religious freedom at the founding lay in a profound suspicion that religionists of various faiths (not to mention skeptics and other non-believers) felt toward each other, resulting in a grand bargain whereby they recognized, as historian Sydney Mead (1963, at 35) once put it, that “the only way to get [religious freedom] for themselves was to grant it to all others.” Surely it is plausible to suggest that such interfaith suspicion continues to the present day, which argues against Hamilton’s repeated assertion that Americans overwhelmingly perceive religion as “inherently and always good for society” (p.274; my emphasis). Hamilton marshals little systematic evidence for that assertion.

Still, her basic starting point – namely, that religion is often responsible for harms that violate the “public good” – is hard to dispute, especially with chapter after chapter of illustrations in Part One. By her own admission, the harms she surveys are self-selected and non-random; they are meant for illustration, not generalization, and they are effective. She begins with children as victims of religiously-motivated harm, including not only the timely issue of clergy sexual abuse, but also faith-healing, abandonment, and other forms of neglect and ill-treatment. She moves from children to marriage (about which I have more to say below), then to land use, schools, the prisons and military, and finally housing and employment discrimination.

Hamilton chronicles many deep violations of human dignity by religious actors, but it is relatively non-controversial to suggest that government ought to have the power to restrict religious freedom to stop the neglect of children or to reduce an imminent threat of violence in prison. There are much more contentious conflicts where the claims of “harm” or the “public good” are up for grabs and the concepts cry out for clear definitions that Hamilton never provides. She invokes John Stuart Mill and other classical liberals as intellectual sources for her understanding of freedom and harm, and with good reason: Mill argued forcefully that government’s primary goal was to protect people from harm, religiously-motivated [*965] or otherwise. But Hamilton’s analysis suffers from a similar problem as Mill’s: identifying the boundaries of what counts as a “harm” in the first place.

Consider Hamilton’s discussion of marriage. On the one hand, she acknowledges that citizens “have every right to contribute their religious viewpoints to the public debate [about marriage] and to try to persuade leaders and fellow citizens that their ideas about social problems have merit” (p.50). On the other hand, she argues that marriage policy is intended to serve the “public good,” which elected officials “shortchange” when they “do not move the conversation off its solely religious bottom” (p.51). To use religious beliefs as the basis for one’s understanding of marriage is to argue for a “revealed legal regime, not a reasoned one” (p.54). But many religionists with traditionalist views of marriage would – and do – disagree. They insist that their view of marriage is supportive of the public good, not inimical to it, and they provide all sorts of reasons to buttress their claims. Without giving us a clear definition of “harm” or the “public good,” Hamilton cannot substantively distinguish a “reasoned,” more encompassing view of marriage from religion-based arguments that also invoke the public good.

Hamilton might respond that this misreads her purpose. He overall goal is to suggest that religious individuals and institutions must be held accountable to the law so that they do not engage in harmful activity, however defined. Part One of the book, she might argue, is simply a description of possible ways that religion may act against the public good; while readers might disagree about the nature and extent of religion-based harm, the sheer volume of Hamilton’s examples makes it difficult to dispute that such harm exists in some form. Yet harm and the public good emerge again as important concepts in Part Two, which contains the final two chapters, and again the problem of definition of terms rears its head.

The first chapter of Part Two is “intended to put to rest the pervasive – but misguided – belief that religious liberty at the time of the framing meant that religious entities were to be superior to the law” (p.239). Hamilton takes the reader on a tour of the decline in special religious “privileges” in the common law system from the twelfth century to the framing, and she does so in thirty-four pages. Suffice it to say that such a brief survey is unlikely to “put to rest” such a complex historical and constitutional matter. Moreover, I suspect that the targets of her inquiry might object to ascribing to them the belief that religion was superior to the law at the constitutional framing; they would undoubtedly suggest that the framers had in mind a broad conception of religious freedom as part of the rule of law that governed religious entities.

Nevertheless, Hamilton succeeds in drawing attention to the historical antecedents of what she calls the “no-harm” rule, without which we “choose liberty at the expense of order and . . . make society responsible for the harm [religious entities] can cause” (p.272). That historical treatment sets up the final chapter, titled “The Path to the Public Good,” where she makes explicit her constitutional argument for SMITH and its progeny and reaffirms her rejection of [*966] the RELIGIOUS FREEDOM RESTORATION ACT (1993) and other efforts to overturn or alter SMITH. For Hamilton, SMITH opens the “best path for religious liberty that preserves the public good,” which she terms “permissive legislative accommodation.” This kind of accommodation rests on three principles: first, “religious accommodation is a legislative, not a judicial, function” (p.295); second, “the accommodation must be consistent with the public good” (p.298); and three, “the legislative determination must be debated under the harsh glare of public scrutiny” (p.300).

Hamilton recognizes that her notion of a legislative rather than judicial role in fashioning exemptions from generally applicable laws will concern those who fear the impositions of a majoritarian institution on religious minorities. But she asserts that legislatures are not majoritarian institutions and that well-mobilized minorities often get their way in any event. Readers can draw their own conclusions about such claims. It is useful to note here, however, that Hamilton neither discusses nor even cites Louis Fisher’s excellent RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS, which both strengthens and weakens her argument simultaneously. Fisher’s scholarship buttresses Hamilton’s argument by describing the various ways that the legislative branch has afforded greater protection to religious freedom than even the courts would allow, thereby lending credence to Hamilton’s assertion that the legislative branch has the capacity and will to protect religious freedom. Yet Fisher’s work also weakens, or at least problematizes, Hamilton’s argument, since many of the exemptions the legislative branch has provided to religious groups, including the RELIGIOUS FREEDOM RESTORATION ACT, Hamilton’s bête noire, have not met her second principle, i.e., that exemptions must be in the “public interest.”

In fact, earlier in the book, during her discussion of RFRA and similar legislation, Hamilton seems to suggest that such legislation reveals the susceptibility of legislators to pressure from “narrow interests” – including religious interests – that are anathema to the public good. Hamilton acknowledges this possibility again in the final chapter, but seems satisfied that the addition of a third principle – that exemptions must be granted only after subjecting them to the “harsh glare” of public debate – will diminish the power of narrower interests. Readers will decide whether Hamilton’s trust in the power of the public glare is naïve, but a more fundamental problem from earlier in the book re-emerges here: the nature of public interest. Again, the reader is left wondering what the elusive public interest is, and how we would recognize a religious exemption as consonant with it (in contrast to a crude expression of “narrow interests”).

In the final analysis, however, wondering about the relationship of religion to the public interest is a worthwhile result of reading the book, even if the author herself does not fully define the relationship for us. GOD vs. THE GAVEL stands as a prominent example of a minority voice in a world of legal commentary that has been roundly critical of the SMITH decision, which itself raised the question of how public goals relate to religious behavior. [*967] Hamilton’s strong assertion of order and public good in the face of claims to individual religious freedom is precisely the sort of springboard that can generate useful discussion, both in our classrooms and the public at large.

REFERENCES:

Fisher, Louis. 2002. RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS. Lawrence, KS: University Press of Kansas.

Mead, Sydney. 1963. THE LIVELY EXPERIMENT: THE SHAPING OF CHRISTIANITY IN AMERICA. New York: Harper and Row.

CASE REFERENCES:

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

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