Wrestling with God: The Courts' Tortuous Treatment of Religion [Hardcover]

Patrick M. Garry (Author)

Book Description

Publication Date: April 2006 | ISBN-10: 0813214513 | ISBN-13: 978-0813214511

The relationship between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence of religion in American public life. This anxiety, in turn, leads to more litigation, as opposing parties constantly try to influence the fluctuating direction of the courts’ religion doctrines.

Courts have often treated the two religion clauses of the First Amendment as contradictory, with the free exercise clause used to protect religious practices and the establishment clause employed to limit the public expression of religious beliefs. Wrestling with God not only reconciles the relationship between the two clauses but also distinguishes them in terms of their respective purposes. Whereas the exercise clause focuses on individual freedom, the establishment clause addresses the institutional autonomy of religious organizations. Under this distinction, many cases currently falling under the establishment clause—e.g., prayer in the schools—should instead be governed by the exercise clause.

Unlike many contemporary interpretations of the establishment clause, the model offered in Wrestling with God views the clause not as a check on religion but as a protection against a specific kind of religious coercion—the kind that results from governmental interference with the freedom of religious institutions. As Patrick M. Garry skillfully argues in Wrestling with God, the establishment clause does not exist for the benefit of a secular society; it exists for those religious institutions in which individuals seek to practice their beliefs.

Editorial Reviews

From the Back Cover

"In this sound, comprehensive, and up-to-date work, Patrick Garry provokes the reader to understand how the protection of speech is given far more absolute protection than religion, even as one would expect religion to be doubly protected by both the speech and religion clauses. While this speech/religion clause comparison has been hinted at before, no one has presented it with greater clarity than Garry."—Douglas W. Kmiec, Caruso Chair and Professor of Constitutional Law, Pepperdine University

"No one has done a better job of understanding the way the courts have framed free speech and religious liberty issues than Patrick Garry. His presentation of the forced tension between religious liberty and the establishment provision in the First Amendment is equally masterful. This is a book that should enjoy wide appeal."—William A. Donohue, President, Catholic League for Religious and Civil Rights "Patrick Garry offers a lively and provocative critique of the Supreme Court's approach to the establishment and free exercise clauses. He challenges the ‘wall of separation’ metaphor, rejects the endorsement test, and argues that neutrality toward religion is not enough. Broadly reinterpreting the scope of each clause, Garry advocates a sea change in constitutional doctrine, one that would permit the government to favor religion in non-coercive ways."—Daniel O. Conkle, Robert H. McKinney Professor of Law, Indiana University School of Law-Bloomington "Patrick Garry presents a valuable study of how the courts have interpreted the First Amendment religion clauses. While his case for revamping the way the courts treat religion under the Constitution is controversial, Garry articulates what many Americans believe but could never put into words due to the complexity of the subject."—Derek Davis, Director of the J. M. Dawson Institute of Church-State Studies, Baylor University

"Wrestling with God gives a skillful overview of religion clause jurisprudence and offers a coherent critique of the existing law. Indeed, although I have long espoused the neutrality approach to the religion clauses, the book persuaded me to reconsider and in part to revise my views."—George Dent, Schott-van den Eynden Professor, Case Western Reserve University School of Law

About the Author

Patrick M. Garry, J.D., is professor of law at the University of South Dakota. He is the author of several books including Scrambling for Protection: The New Media and the First Amendment and A Nation of Adversaries: The Social and Cultural Effect of America’s Litigation Explosion.

Product Details

• Hardcover: 230 pages
• Publisher: Catholic University of America Press (April 2006)
• Language: English
• ISBN-10: 0813214513
• ISBN-13: 978-0813214511
• Product Dimensions: 8.6 x 5.6 x 0.8 inches
• Shipping Weight: 1 pounds
• Average Customer Review: 4.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #3,899,838 in Books (See Top 100 in Books)

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2 of 5 people found the following review helpful:

4.0 out of 5 stars FREEDOM OF RELIGION IS THE FIRST RIGHT, July 27, 2006

By 

John M. Grondelski - See all my reviews
(REAL NAME)   

This review is from: Wrestling with God: The Courts' Tortuous Treatment of Religion (Hardcover)

(condensed from my National Catholic Register review):The First Amendment guarantees Americans the "free exercise" of religion. If the law can't interfere with the practice of faith, why have courts ruled that Catholic hospitals must provide abortiofacient drugs? That a landlord cannot refuse to rent an apartment to people living together, despite the landlord's religious objections to non-marital cohabitation? If freedom of religion is a Constitutionally guaranteed right, why can't privately funded manger scenes stand in public places without being diluted, the Christ Child attended by Frosty in the light of a menorah while shepherds tend the reindeers?

If you've wondered why "free exercise" of religion has been taking such a beating at the hands of the courts for the past half century, read this book. Patrick Garry, professor of law at the University of South Dakota, lucidly explains how the courts have warped the First Amendment through their interpretations of its two religion clauses.

Two provisions in the First Amendment are supposed to protect religious freedom: the "no establishment" clause, which bars laws that would give any one denomination a privileged status, and the "free exercise" clause, which was intended to exclude legal interference with religious practice. "Free exercise," Garry insists, has primacy: the Founding Fathers wrote the "non-establishment" clause to protect free exercise by preventing any one church from acquiring a special status, like Britain's Anglican Church. "The first and foremost concern of the framers of the First Amendment was not to create a separation of church and state, but to guarantee religious freedom. And the absence of an established church was just one aspect of achieving freedom of religion."

So how have we gotten into the Constitutional morass we're in, where "freedom of speech" (another First Amendment right) ensures unbridled license to plunge crucifixes into pails of urine in public museums, but a public school teacher cannot wear a cross around her neck because one child might think that the pendant was a subliminal governmental plot to advance religion? Garry demonstrates how, since the 1940s, the courts have inverted the interpretation of the First Amendment, expansively focusing on the non-establishment clause (taken to exclude preference of all religion rather than preference of a religion) to the detriment of the free exercise clause. The courts' interpretation of the non-establishment and free exercise clauses has put the two at loggerheads, suggesting that the more you have of one, the less you can have of the other. This has inevitably led to free exercise being trumped by non-establishment, subjecting religious freedom to all sorts of limits no court would ever tolerate, for example, on freedom of speech. Holocaust survivors must bear with Neo-Nazis marching through their community in the name of free speech, but one atheist's feelings holds veto power over a high school graduation prayer.

Garry just doesn't complain. He offers a positive theory of the First Amendment that recognizes the Constitution as protective of religious freedom in practice: "Under the spirit of the First Amendment, it is better to favor all religion than to risk . . . eliminating a religious presence from the nation's public life. It is better to risk the incidental occurrences of some religious proselytizing than to censor religious viewpoints. Consequently, the government should make it easier to exercise religious beliefs than not." Nor does he remain at the level of pious bromides, instead taking us through the various legal tests and precedents that would require modification to make Garry's view a reality. While the work of a legal scholar, it is highly readable by general readers interested in church-state relations. My sole complaint would be its steep price.