Religion and the Constitution: Free Exercise and Fairness.

• Author: Witte, Jr., John
• Position: Book review

RELIGION AND THE CONSTITUTION: FREE EXERCISE AND FAIRNESS. By Kent Greenawalt. (1) Princeton University Press. 2006. Pp. xi + 455. $39.00.

A familiar hymn, still sung with gusto on many Sunday mornings, has a couple of choice lines that came to mind as I read Kent Greenawalt's latest masterwork: "Fair are the meadows, fairer still the woodlands." (3) Most souls brave enough to enter the First Amendment forest of religious liberty are more likely to come out shouting "foul" than singing "fair." "Foul" in the baseball sense because some of the Supreme Court's recent cases applying the First Amendment establishment and free exercise clauses keep rolling wide of the right(s) baseline. "Foul" in the olfactory sense because this First Amendment forest now has the distinct aroma of founding principles of religious liberty rotting from neglect and of novel doctrines of neutrality that just don't smell right. And "foul" in the equitable sense because the First Amendment religion clauses have been so weakened by recent Supreme Court cases that the protection of American religious liberty is falling increasingly to other legal provisions and other branches of government. It is no small irony that today Congress and state courts provide more religious liberty than the federal courts, and that the First Amendment free speech clause provides more protection for religious claimants than the First Amendment free exercise clause.

Kent Greenawalt's projected two volume series on Religion and the Constitution provides the reader with a clear map through this dank First Amendment forest, and a cogent guide to a fairer religious liberty jurisprudence. The first volume, subtitled "Free Exercise and Fairness," is the book here under review. The second volume, on the establishment clause, is in the works. This first volume is a free standing tome that can be read without its companion. But it properly puts off some of the constitutional questions (involving issues like Sabbath law and religious tax exemptions) that implicate both free exercise and establishment clause questions. If the elegance and acuity of this first volume are any indication, you would be wise to place an advanced order for the second. These volumes are destined to become standard research guides and teaching tools for religious liberty scholars, students, and advocates alike.

The main purpose of this volume is to explore the many areas of free exercise law that have occupied federal (and sometimes state) courts, legislatures, and agencies--and to suggest reforms that will bring greater freedom, fairness, and firmness to each of these areas of law. After a brief conceptual framing and analysis of the history of the First Amendment religion clauses, Greenawalt offers a score of chapters that take up various religious liberty issues, which are distilled a bit in a brief concluding chapter. The issues include the claims of individuals to conscientious objections to military service, education, oath swearing, medical procedures, and more; their claims to special constitutional protections for religious drug use, dress, ornamentation, grooming, proselytism, Sabbath observance, sacred sites, child custody, tithe payments, and others; and their calls for special religious rights and liberties within the military, prisons, hospitals, public schools, government agencies, public forums, and private workplaces and associations. Greenawalt also takes up the claims of churches and other religious organizations to special rules to associate and incorporate, to discriminate or propagate their views on religious grounds, to protect their confidential clerical communications, to resolve their own internal disputes over property, to gain special protections in bankruptcy proceedings, and to receive tax exemptions, zoning privileges, and historic preservation immunities--and the limits on these and other claims when religious associations, through their officials or agents, engage in crimes, torts, or untoward conduct. This topical organization of the chapters (and the detailed index) makes the book valuable both as a reference for those interested in selected topics of religious liberty, and as an overview of the field that can be read cover to cover.

Most of the chapters pose the legal problematic(s) at issue, rehearse the relevant cases, statutes, and regulations on point, and then offer a critical reading--sometimes concurring in, sometimes dissenting from, often nuancing and urging improvements to the prevailing law and legal opinion on point. The book ranges well beyond traditional First Amendment free exercise issues heard by the Supreme Court. Greenawalt analyzes the full range of freedoms of private parties to exercise their religious beliefs, and the appropriate limits that may be imposed on this exercise for the sake of health, safety, and welfare of the community or the fundamental rights of others. On a number of the issues that have reached the Supreme Court, Greenawalt compares its opinions with those of lower federal and state courts, enhancing the legal complexity of the issues and the range of possibilities for their fairer resolution. The reader also gets a vivid sense of many federal and state statutes and regulations governing religion (dealing with laws of bankruptcy, health care, workplace, construction, and the like) that, for better or worse, have proceeded without much constitutional scrutiny so far.

Intermittently, Greenawalt pauses to introduce readers to the key steps of pressing a prima facie free exercise case under the First Amendment. Parties must not only meet the general standing, case and controversy, ripeness, and political question thresholds. They must also demonstrate their sincerity and good faith, and the presence of a substantial burden that has been imposed on the exercise of their religion. Greenawalt traces the shifting standards of review in different eras and areas of religious liberty law, and the ample problematics that confront courts in balancing free exercise claims against government power and balancing one party's religious rights assertions against the private rights claims of others. He also explores deeply the perennially contentious issues of legislatively and judicially created exemptions for religious claimants who meet these prima facie requirements, coming out in favor of most of them (pp. 27-34, 109-56, 201-32).

The book is written with elegance, power, and lucidity--and filled with the kind of wit, wisdom, and Wissenschaft that Greenawalt's readers have come to expect from his dozen earlier tomes on the constitutional and philosophical foundations of law, religion, and morality. (4) Readers cannot help but see a keen intellectual and incisive teacher at work in these pages, who knows just how to probe and push the law at propitious points, and how to map out complicated arguments so all can understand what is at stake. He makes judicious use of the vast resources at hand. He picks selectively among the hundreds of scholarly texts, addresses the main federal cases and statutes, and introduces some interesting state cases and statutes (such as those on snake handling, church tort liability, and child care and custody disputes based on religion) that have not been enough part of the mainstream of scholarship on religious liberty. And while characteristically generous and genial in his treatment of others, he does not flinch from dishing out firm rebukes and withering criticisms of courts and commentators who have strayed from the right path.

The right path of religious liberty, as Greenawalt sees it, is that government must accommodate if not facilitate "the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare" (jacket). "I believe strongly in the major values that lie behind free exercise and nonestablishment," he elaborates in a strong early passage that sets the tone of the book.

People should be free to adopt religious beliefs and engage in religious practices because that is one vital aspect of personal autonomy, and because recognition of that freedom is more conducive to social harmony in a modern society than any other alternative. I believe, further, that most people experience some transcendent...