June 12, 2005

Jason Samuel: Is Religious Freedom Possible?

by Guest Contributor

Via Mirror of Justice, via Legal Theory:

The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner v. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground.

Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking truth: religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains.

A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.

June 12, 2005 05:11 PM | TrackBack

I'm not sure that it's any more difficult to define "religion" than it is to define "speech." Is nude dancing speech? Some say it is, some say it ain't. Is being able to spend an unlimited amount of money to advocate for the candidate of your choice part of the right of free speech? A majority of the Supreme Court consistently has said that it's not.

What makes the religion clauses more complicated than the speech one is that you can advocate for a nearly unlimited freedom of speech without running into other Constitutional barriers (as Alexander "The First Amendment Is an Absolute" Meiklejohn did)*, but sometimes free exercise claims run into establishment ones. For example, I may think it's part of the free exercise of my religion to thank God en masse at a major event such as my high school graduation, but other people would consider this an establishment.

* To clarify, Meiklejohn believed there could be tort actions for speech; time, place and manner restrictions; and prohibitions on actual incitement and conspiracy to commit crimes. But he did not believe in either Learned Hand's BPL type calculation that the government could act if the gravity and probability of the evil it seeks to avert is sufficiently great, nor in Holmes's "clear and present danger" formulation.

Posted by: PG at June 12, 2005 10:15 PM
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