Title: God vs. the Gavel: Religion and the Rule of Law
Author: Marci A. Hamilton
Publisher: Cambridge University Press
Strong prose does not come off as being too academic
Rare instance of someone completely reversing their position on something
Will probably appeal mostly to those already interested in First Amendment jurisprudence
Analysis of how religion can be unjustifiably privileged in America today
Argues that religious groups have been given too many exemptions to laws
Explains how religious exemptions can undermine the common good
Marci Hamilton used to believe this and, as a lawyer, actively argued on behalf of the principle that religious groups should be allowed greater breadth of action than other organizations. Today, though, she has come to realize the folly of this position and is arguing even more forcefully that religious groups must generally be held to the same legal and regulatory standards as everyone else. Her reasons and arguments can be read in her book God vs. the Gavel: Religion and the Rule of Law.
Hamilton does not dispute constitutional protections for religious beliefs, but she does dispute the idea that these protections extend without reservation to religious behavior. The right to believe something may become meaningless without a right to act on the that belief, but its obvious that the rule of law becomes meaningless if religiously motivated behavior stands outside legal regulation.
Hamilton does not argue that there should never be any religious exemptions from generally applicable laws that would be too extreme. Instead, she argues that the guiding principle should be the idea of first, do no harm. If people are harmed by an exemption, then it is probably wrong because it means that some citizens are losing out in order to accommodate the religious beliefs of others. If no one is harmed by the exemption, then it is probably valid. Part of what makes this valuable is that it requires an analysis of the facts of the case and the real-world effects:
- In recent decades, religious entities have worked hard to immunize their actions from the law, either by obtaining legislative exemptions or by forcing the courts to invalidate any law substantially burdening religious conduct that was not absolutely necessary.
- They have always waved the banner of religious liberty, and few Americans have thought to question them. What could be more important in a free society than religious liberty? When the question is left in the abstract, it is hard to think of anything more important. But when one operates from the ground and knows the facts, the answer to the question is that there are all sorts of interests that must trump religious conduct in a just and free society such as the interest in preventing childhood sexual abuse, or in deterring terrorism, or in preserving private property rights. Every citizen has at least as much right to be free from harm as the religious entity has to be free from government regulation.
According to Hamilton, proposed exemptions must be created by a legislature while debating under the "harsh glare" of public scrutiny. This ensures that the exemption does no harm and is consistent with the public good. After all, the public good is what the government must be concerned with and not merely the good of one religious group.
A good example of a valid exemption where no one is harmed are conscientious objectors in the time of a military draft. Few apply for it, so their absence wont be harmful.
This makes it reasonable to accommodate their religiously motivated request not to be subjected to the same draft as everyone else. There are legions of invalid exemptions, many of which Hamilton documents in her book. There are parents who allow their children to die because their religion forbids the use of modern medicine. There are churches which effectively destroy small communities because local governments are prevented from enforcing simple zoning standards that all others are expected to obey. Religious groups are allowed to discriminate while using federal funds. Indeed, just about the entire faith-based initiative is a means for giving special privileges to religious groups.
For religious groups that care about the public good, being restricted to only those exemptions that are compatible with the public good will not pose a problem. Those who object to being so restricted, though, are likely those who have been abusing their position to grab more power and privileges than is just. Many religious conservatives complain about sexual license in modern society, but more worrying and dangerous is the religious license of those who see religion as an excuse for predatory behavior.