Summary
Title: Religious Liberty in America: Political Safeguards
Author: Louis Fisher
Publisher: University of Kansas Press
ISBN: 0700612025
Pro:
• Easy to read, concise introduction to religious liberty in American history
• Important reminder that courts aren't the only field for fighting for liberty
• Provides balance against common view that only the courts matter
Con:
• Glosses over or ignores some cases for sake of brevity
• Evidence doesn't always support his arguments
Description:
• Explanation of the role of Congress in expanding and protecting religious liberties
• Argues that Congress is at least as important as the courts for religious liberties
• Describes many, many important laws and court decisions
Book Review
Conventional wisdom suggests that we turn to courts as a final source of protection for religious freedoms. When people feel that their liberty has been infringed upon, they assume that they must seek a judicial remedy by taking their case to the courts — but is that valid? Louis Fisher, Senior Specialist in Separation of Powers at the Congressional Research Service of the Library of Congress, argues in his book Religious Liberty in America that Congress is the best source for maintaining and securing religious liberty:
- For most of U.S. history up to World War I, one finds it difficult to locate court decisions that uphold individual rights in any area. In seeking legal remedies, blacks, women, and other minorities turned not to the judiciary but to the legislative and executive branches. While it may seem logical that a majoritarian institution like Congress cannot be trusted to protect isolated and politically weak minorities, history has not followed logic.
There are some sound reasons to give Fisher’s argument serious consideration. For example, the First Amendment itself — the portion of the Constitution which guarantees religious liberty — was created by politicians rather than judges.
Nevertheless, there is a problem with Fisher’s examples which is never really addressed: for every judicial failure to protect religious liberty, there has already been a legislative failure to do the same. Court cases do not arise out of thin air — in this area, they only exist when someone alleges their religious freedom has been infringed upon. Such cases are usually brought by members of a minority religion — legislative bodies usually do a good job at protecting the religious liberties of the majorities which put the legislators in office.
Because of this, Fisher’s examples of how Congress has crafted legislative protection for the common practices of mainstream Christian groups can’t qualify as good support for his argument. Fisher also offers examples of how Congress has tried to protect the liberties of minority groups and one of his biggest is the Religious Freedom Restoration Act.
What does this mean for Fisher’s book? That depends upon exactly what his thesis really is. Does he mean to argue that legislative bodies are “often better than” the courts in protecting the religious liberties of minorities? If so, then he doesn’t succeed. On the other hand, if he goal is the more modest attempt to demonstrate that “we must understand the political — and not just the judicial — context for the safeguards that protect religious minorities,” then he does succeed.
Any attempt to explain and understand religious liberty in America cannot focus solely on the courts. For good and for ill, legislative bodies play an equally important role in defining and describing the boundaries of freedom for religious groups. If you are looking to learn more about the ways in which Congress has tried to protect religious liberties and courts have failed, Fisher’s book is a good place to start.
