God vs. the Gavel
By Marci Hamilton
Cambridge University Press; $28
In God vs. the Gavel, lawyer Marci Hamilton offers an a-typical view of the law's role in religion. Instead of a judiciary moving towards more limits on religious expression like school prayer, she sees a growing body of law that unwisely exempts religion from state oversight. Her perspective is unusual and challenging, her discussion of the historical context for free expression is well-told, but her main argument falls flat. She points to a wide array of examples of overreaching religions, from the Catholic clergy abuse scandals to Christian Scientists who let their children die rather than give them medicine. But she's hard pressed to point to convincing evidence for any greater organized campaign against the constitutional principles that limit religious conduct.
The problem is not the "pervasive belief in the United States that religion is above the law," but an inclination to believe without question the pure motives of religious groups and figures. Hamilton touches on this, accosting us for our complacent view of church and Sunday school. But her ire is misdirected. Hamilton's targets ought to be twofold: first, politicians and prosecutors who lack the political will to go after abusive priests and other criminals with uniforms. Second, the public that laxly permits harmful actions taken under the banner of religion.
Hamilton's most persistent gripes are aimed at two federal laws, the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, which shift the burden in cases arising from zoning disputes and prisoner complaints from the worshippers to the cities and states.
Hamilton's belief that turning over more of the decision-making process to Legislatures will solve the problem is a disjointed conclusion to reach after condemning states for letting Christian Scientists avoid giving their kids medical care and prosecutors for not going after the Catholic Church's sinning priests earlier and more vigorously.
She rails against the special interest lobbyists who got RFRA and RLUIPA passed in the first place, but doesn't seem to understand their influence over every action Congress takes.
Hamilton's basic premise - that religion should not be used as a cover for lawbreaking - is strong, but the conclusions she reaches are far from convincing.