GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW. By Marci A. Hamilton. New York: Cambridge University Press. 2005. Pp. xii, 414. $28.
Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no.
If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws--but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be exempted from the murder laws. And hardly anyone thinks that government should compel Catholics to ordain female priests, or forbid children to take a sip of communion wine. Other cases provoke more disagreement. Who should decide, and on what criteria?
The legal claim in God vs. the Gavel is that only legislatures may decide, and that judges may not. The legislature must enact specific rules for religious exemptions; it may not enact religious exemptions under a generally applicable standard to be interpreted by judges. Professor Marci Hamilton (1) briefly argues for this claim in Chapter Ten.
The rest of the book is a poorly executed rant--disorganized, self-contradictory, and riddled with errors. Chapters One through Nine make a much broader legal claim that is quietly abandoned in Chapter Ten. Chapter Ten suggests that her position may not be as extreme as it often sounds, but this appearance of moderation is too little, too late, to save a dreadful book. Elsewhere I have praised Hamilton's judgment, (2) but this time there is nothing good to say.
Part One catalogs abuses and alleged abuses by religious organizations and individuals. Chapter One asserts that Americans hold an unrealistic belief that religion is always good. But in fact, Hamilton says, religion does much harm, and therefore must be regulated. Chapters Two through Seven give examples: children (physical and sexual abuse, withholding medical care); marriage (principally polygamy); churches in residential neighborhoods, which sometimes cause parking, traffic, or other problems; miscellaneous issues in public schools, prisons, and the military; and discrimination in church employment and by religious landlords.
Chapter Three has a long digression on same-sex marriage, which appears to be simply an occasion to bash conservative believers. The ban on same-sex marriage is unrelated to exemptions or to regulating churches; Hamilton's feeble effort to link the issues is to say that religious entities want their own way on both marriage and exemptions (pp. 55-56). She is notably more sympathetic to court decisions protecting gays than to court decisions protecting the exercise of religion (pp. 62-65), but she never explains why courts are more competent to override legislative judgments in one of these doctrinal areas than the other.
Part Two addresses history and doctrine. Chapter Eight is a tendentious account of the Supreme Court's decisions on regulatory exemptions for religious conduct. Chapter Nine is the historical version of Part One, equating modern claims to exemptions with abuses by established churches from the twelfth century forward. Chapter Ten finally argues for the claim that only legislatures may grant exemptions.
The abuses catalogued in Part One have little relevance to her ultimate legal claim. Of course some religious behavior must be regulated, but that tells us very little about whether judges, legislators, or both should decide when to regulate and when to exempt. To the extent that Part One is relevant, it cuts against her argument for legislative exclusivity, because her most troubling examples are exemptions granted by legislatures, not judges. She complains that legislators serve religious lobbyists and ignore the public interest. So why does she insist that these irresponsible legislators should be the only persons trusted with questions of exemption?
She has no plausible answer to that question. But her criticism of legislators does make sense of the chapters on religious abuses. These chapters are aimed at voters and legislators. "The purpose of this book is to persuade Americans to take off the rose-colored glasses and to come to terms with the necessity of making religious individuals and institutions accountable to the law so that they do not harm others" (p. 3). Only legislators can exempt religious practices from regulation, but when they consider legislation that affects religion, legislators should be highly suspicious of churches.
APPEARING AND DISAPPEARING THESES
Hamilton's ultimate claim in Chapter Ten is very different from her initial claim in Chapter One. Chapter One argues that religious organizations should be subject to all the regulations that restrict other organizations--"unless they can prove that exempting them will cause no harm to others" (p. 5). She repeatedly elaborates on what she calls "the no-harm principle" (pp. 5, 7-8, 11,205-10, 227, 260-63, 275, 288).
The no-harm principle sounds plausible on first reading, but it cannot withstand analysis. Of course religious believers have no constitutional right to inflict significant harm on nonconsenting others. But we live in a crowded society, where routine activities both inconvenience those around us and impose significant risks. Every first-year law student has to confront the fact that if we want to eliminate wrongful deaths, we must do without cars and bridges. We also have an expansive capacity to define as harmful anything we don't like. A rule that no religious group could do anything the political process defined as harmful would leave all religions at the mercy of any interest group that could persuade some regulatory body to act.
But Hamilton refuses to draw any distinctions, insisting that "a harm is a harm is a harm" (p. 206)--a reductionism she uses four times (with minor variations) (pp. 11, 116, 206, 212). One of her examples is a neighborhood that objects to a synagogue taking over a monastery on a ten-acre parcel with ample off-street parking. But "[t]raffic studies indicated that the synagogue's proposed use would increase the number of cars daily from fewer than 10 to over 100," thus causing "a seismic change that would affect basic aspects of the homeowners' lifestyles" (p. 101). A hundred cars a day is one car every ten minutes during sixteen waking hours, or more likely, occasional clusters of cars between long intervals in which the traffic flow is basically unaffected. If this be "seismic," it is hard to imagine what could count as "no harm." Hamilton would effectively permit the residential owners to define as harmful any productive use of the ten acres and the existing building, because any productive use would generate additional traffic. The right to worship cannot exist without a space to worship in, and if any increase in traffic counts as harm, the no-harm rule would make it impossible to create new places of worship.
This example appears in a land use chapter that is entirely devoted to residential neighborhoods. She never discloses that many church zoning disputes involve commercial properties. (3) Churches seeking to locate in commercial neighborhoods face different claims of harm: that they won't generate enough traffic, or that they won't generate tax revenue. (4) Loss of tax revenue is a universally applicable harm that would justify eliminating every place of worship anywhere in the country, until and unless legislatures begin taxing churches. If worship could be excluded on any ground a neighbor, a zoning board, or a taxing authority characterized as harm, the right to worship would be subject to the standardless discretion of local officials. Despite its surface plausibility, a literal no-harm standard is untenable.
So Hamilton abandons her no-harm standard. She briefly suggests that "de minimis harm to the public" is acceptable (pp. 275, 280). Then she moves to a third standard:
The legislator's task is one of balancing the value of religious liberty over and against the harm to others if a religious individual or institution is permitted to act contrary to the law.... [T]he legislature should weigh, on the one hand, the importance of respect and tolerance for a wide panoply of religious faiths, and on the other hand, whether the harm that the law was intended to prevent can be tolerated in a just society. (p. 297) The no-harm and de minimis standards disappear without a mention. She never acknowledges that her position has changed, but it has changed fundamentally. Churches and religious individuals may harm their neighbors after all if the harm "can be tolerated" and if prohibiting the harmful religious activity would inflict a greater harm to religious liberty. Preventing intolerable harm to others is a compelling interest that justifies regulation of religion on even the most protective theory of free exercise. The disagreement is over how to strike the balance. Hamilton would place a much lower value on religious liberty and a much higher value on every passing car. But she and I can apparently agree that the essence of the problem is to balance competing harms.
Sometimes she strikes the balance more sensibly. She approves the exemption from military service and the exemptions for religious use of peyote, for communion wine during Prohibition, for "neat and conservative" religious apparel in the military, and for religious discrimination in hiring clergy (pp. 280-83). She seems to approve the exemption that allows some faiths to maintain an exclusively male clergy (p. 190). Some passages in Chapter Ten actually sound quite reasonable. But she can appear reasonable only because she has...