Vol. 10 No. 3 (March 2000) pp. 185-188.

GOD VERSUS CAESAR: BELIEF, WORSHIP, AND PROSELYTIZING UNDER THE FIRST AMENDMENT by Martin S. Sheffer. Albany, New York: State University of New York Press. 213 pp. Cloth $57.50. Paper $18.95.

Reviewed by Richard A. Glenn, Department of Political Science, Millersville University of Pennsylvania.

In GOD VERSUS CAESAR, Martin S. Sheffer, professor emeritus of political science at Tuskegee University, reviews the long and sometimes tortuous
judicial development of the Free Exercise of Religion Clause. He also suggests guidelines for the future exercise of judicial review in this area. Sheffer accomplishes this by examining - case after case after case -important free exercise decisions of the Supreme Court. This book "sets case briefs to music" and does so splendidly. What makes Sheffer's contribution so splendid is not its recitation of the facts, issues, holdings, or rationales (all of which are accessible and discernable to first year students in a constitutional law course). Rather, what makes this book worth reading is the author's deft insights into the opinions joined with his expert analysis of
the cases' legal, historical, and political importance. Sheffer does much more than summarize what the Court has said, which is helpful but limited in its import. Instead, Sheffer charts a course to greater judicial consistency by pointing out the highwater marks, shortcomings, and failures of the Court's adjudication in the area of free exercise. And his arguments are persuasive.

GOD VERSUS CAESAR is not intended for the general reader, the intellectually faint of heart, the passive "Court watcher," or any other curious individual who is not willing to expend much effort in coming to grips with this complicated and precious subject matter. The level of writing is complex: Sheffer relies on extraordinarily long, but well-chosen passages from Supreme Court opinions, academic texts, and law review articles. The language is technical. The analysis is heavily endnoted. (The entire text is only 213 pages. The endnotes alone constitute forty-six pages.) This book is for the graduate student and beyond, and provides an excellent example to public law scholars of how to conduct research in a discipline that increasingly tends not to recognize and reward that which cannot be quantified by numbers.

GOD VERSUS CAESAR divides into the three major areas of free exercise of religion - criminal conduct and antisocial behavior, public education, and conscientious objection. Each area receives one chapter, save conscientious objection, which is the focus of three. Each chapter ends with a summation, not a conclusion. The summation, in just a dozen or so paragraphs, expertly encapsulates what Sheffer perceives to be the primary direction and chief criticisms of the Supreme Court's adjudication in that specific area. The reader who finds himself or herself bogged down in

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the minutiae of the chapter can extricate himself or herself in the summary. The book also includes a table of cases and a bibliography of the more respected texts in this area.

At the outset, Sheffer concedes his bias. He is an "activist libertarian." He believes in the primacy of the Bill of Rights, and of the First Amendment. Moreover, he does not believe that the ultimate remedy lies solely with the ballot box. He admits his subjectivity, and argues for the widest possible enlargement of religious freedom - freedom that includes more than the right to believe and worship according to the dictates of one's conscience, but also to proselytize (even in unorthodox ways). His thesis is clearly stated early and repeated often: "Religious freedom ... is a relationship between the individual and his [or her] conscience, or the Supreme Being of his or her choice (if he or she has one), and not a relationship between the individual and the government." Without religious freedom, all other freedoms become less absolute. Thus, the Supreme Court should forsake criticism in this area, for religious protection and promotion is far better for a democratic society
than religious warfare. Religion is God's domain; Caesar ought not trespass. Additionally, it is the Court's responsibility to erect barriers to prevent
Caesar from doing so.

With that is mind, Sheffer sets out to analyze, critique, and grade the Supreme Court's efforts. In the area of criminal conduct/antisocial behavior, the Court continues to distinguish, rightfully so, between belief and action. Where the Court fails, however, is in its continued refusal to protect behavior that is considered immoral or antisocial but not criminal -polygamy, for example. In the nineteenth century, the Court articulated the "secular regulation rule": "If the law is within the scope of governmental authority and of general application, it may . . . be applied without regard to the religious convictions of those whose acts constitute willful violations of
the law." In REYNOLDS v. U.S. (1879), the Court applied this rule to uphold a congressional statute banning and punishing polygamy. Sheffer's response:
REYNOLDS was incorrectly decided; "it should not be the purpose of the law to punish [what is perceived as] immoral behavior." Polygamy may be antisocial, but it should not be criminal. It is a sincerely held tenet of the Mormon faith, and, as practiced by willing adults, does not conflict with the rights of others. Therefore, Caesar should not prevent this "exercise" of one's beliefs.

Pertaining to public education, Sheffer has high marks for Court's protection of religious belief. He specifically praises the "refusal to salute the flag" and "exemption from compulsory attendance laws for the Amish" decisions. In this area, religious freedom has, more often than not, received full protection.

Sheffer saves his best analysis for conscientious objection, which includes more than refusal to military conscription. Because conscience is a "penumbra" of the First Amendment, free exercise of religion must extend beyond religiously motivated behavior to matters of conscience. The clause should be interpreted to prevent naturalization and religious oaths, prohibit a state from requiring an oath for admission to the bar, and protect the religious practices of unorthodox churches. Sheffer laments the absence of the words "or of conscience" from the First Amendment, concluding

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that free exercise would be more meaningful if the Framers had simply included those words within the clause. He is particularly disappointed with the Court's jurisprudential shift evidenced in EMPLOYMENT DIVISION v. SMITH (1990), where the justices abandoned the compelling interest test and sustained a generally applicable law prohibiting the use of peyote, even though that law imposed a significant burden on members of the Native American Church. Sheffer writes:

"[D]oes the majority really think that the sacramental use of peyote has even harmed anyone (either the user or a third party?) If not harmful, how can it be forbidden? The national government exempted sacramental wine from the prohibition laws. Imagine the uproar if it had not; yet isn't the peyote situation identical, except that the Native American Church has no political power comparable to that of the Catholic Church? Isn't alcohol far more harmful to society than peyote? ... What is at work in the majority opinion, one could argue, is at least selective religious indifference, or unconscious antireligious conduct."

He affirms Congress's response to the decision with the Religious Freedom Restoration Act of 1993, and he bemoans the Supreme Courts declaration of its unconstitutionality (CITY OF BOERNE v. FLORES 1997). According the Sheffer, the Court has said, in essence, that only blatant and clearly bigoted attempts
by state and local governments to discriminate against religious practices are unconstitutional. The Free Exercise Clause must mean more than that. It must also mean that government may not penalize unorthodox" or harmless religious behavior.

What can be concluded? The Free Exercise Clause has enlarged its protective coverage - from orthodox religion to some conscientiously motivated behavior. But, "the Court is still too insensitive to the untraditional and unorthodox." Religion must be defined more broadly, to include more matters of conscience.

GOD VERSUS CAESAR has but a few shortcomings. First, in the text the author fails to include the years in which the discussed cases were decided. To secure such information, the reader must turn to the endnotes. This is a frustrating distraction. Second, Sheffer could have accomplished his purpose without diverging into a conversation about the subjective nature of the judicial decision-making process. The statement, "[T]he Court can justify almost anything done and almost any decision handed down," may be accurate, but it detracts from his call for greater religious freedom as a matter of constitutional principle, as opposed to one left to the personal value choices of justices. Finally, the reader is left wondering how far Sheffer believes the Free Exercise Clause should go in protecting proselytizing without
running afoul of the Establishment Clause. But the Establishment Clause receives plenty of attention in the literature anyway. It is somewhat refreshing to read a book on religion and the government without getting bogged down in a discussion of Jefferson's wall of separation. These shortcomings, as is obvious, are minor. For those who are seriously interested in the constitutional aspects of free exercise of religion, GOD VERSUS CAESAR will advance one's understanding.

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CASE REFERENCES:

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

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

REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879).