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Wrestling with God: The Courts' Tortuous Treatment of Religion

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(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.