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God vs. the Gavel: Religion and the Rule of Law Paperback – September 17, 2007
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From Publishers Weekly
In this intelligent and forcefully argued book, Hamilton, a self-professed former "Polyanna" when it comes to religion, explores the thorny conflicts between religion and society, detailing how some religious groups and institutions misuse laws intended to protect religious freedoms to justify child abuse, employment discrimination and other ills. She is vocal in her criticism of efforts to exempt religious groups from the laws secular organizations must abide by, saving particular disdain for deal-making lawmakers, whom she compares to "hear-no-evil, see-no-evil, speak-no-evil monkeys." Hamilton dedicates about half of the book to examining six broad areas where religious groups enjoy special treatment-from marriage laws to preferential treatment within prisons to land use and local zoning ordinances. Passionately argued throughout, the book seems almost like Hamilton's atonement for her previous stance on these issues. (She quotes herself in the opening as having written 11 years ago that "the exercise of religion should trump most governmental regulation.") Certainly of interest to those in the judicial and legislative realms, Hamilton has written this book for the average reader, though some may be confused by the myriad legal precedents and her descriptions of legislative maneuvering.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to an out of print or unavailable edition of this title.
The First Amendment is stirring second thoughts among scholars wary of the social and legal consequences of religious liberty. Hamilton investigates numerous contentious religious issues-from headline cases in which Catholic clergy have sought clerical immunity for alleged acts of child abuse to obscure episodes in which Sikh parents have protested against school policies preventing sons from carrying ceremonial knives. But all of the various episodes Hamilton chronicles ultimately underscore one simple thesis: Americans' right to believe whatever religious doctrines they choose deserves absolute protection; Americans' right to act on religious belief should end whenever such actions harm or endanger others. It will disturb some readers that Hamilton invokes her largely negative view of American religionists as justification for giving secular politicians expansive powers to curb religious excesses, but as religious belief continues to diversify in multicultural America, the urgency of the issues here raised guarantees Hamilton many interested readers. Bryce Christensen
Copyright © American Library Association. All rights reserved --This text refers to an out of print or unavailable edition of this title.
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I disagree with both parts of Hamilton's solution: In my view Religion, being a mighty force, should be subjected to special regulation. And the main crafters of that regulation should be the Courts, not the legislators.
As Hamilton rightly stresses, Religion can bring both great good and great ill. Thus it makes no sense to think that general regulations, applicable to less powerful forces of society, are straightforwardly applicable to religion. Religion needs its own regulation: at times, it should be regulated more fiercely then non-religion; At other times, it should be allowed more leniency.
Take Creationism; if parents would like their children to study Austrian School Economics or Marxism in Economics class, the Courts wouldn't intervene. But when Christian parents try to sneak "creation science" into biology class, Lawsuits abound, and succeed. Is that unfair discrimination against religion? Surely not. First, unlike economics, religion is a divisive. As Richard Dawkins likes to point out (e.g. in The God Delusion), we have Christian, Muslim and Jewish Children, but not Marxist or Neo-Classical ones. Therefore a school policy reinforcing religion can cause severe tensions (and does: see Monkey Girl: Evolution, Education, Religion, and the Battle for America's Soul for recent shenanigans in Dover, PA). Second, religion is one of the very few forces capable of massively infecting schools with pseudo-science. The risk of an "Austrian School" epidemic is low, and so regulating against it is unnecessary.
For an opposite example, see the Clergy Child Abuse scandal. Hamilton documents the horrifying child abuse in the Church. The current US scandal is one of many, and the reason for it seems to be self evident: By offering celibate men access to children, the priesthood is a natural calling for a pedophile unwilling or unable to marry (Full Disclosure: There are conflicting studies on the topic). Now suppose that a secular organization would offer activities for children guided exclusively by celibate men. I think it should be banned, or at least closely monitored by the law enforcement and child welfare authorities. But such treatment of the Roman Catholic Church is unthinkable, politically unfeasible, and probably harmful: the appearance of religious prosecution would trump the benefits.
Hamilton agrees that special ("de minimis") exemptions from regulation should be offered to religion: "If an exemption will not harm others, it should be provided - by the legislature". (p. 275).Why should such exemption be provided by the legislature rather than the Judiciary? The only answer I can discern in Hamilton's book is an alleged competency of the legislature to do so in a, well, judicious manner. "[The legislature] may decide to investigate a social problem in depth ... [it should] balance[e] the value of religious liberty over and against the harm to others if a religious... institution is permitted to act contrary to the law" (p. 297). The key word here is "may". Hamilton offers no evidence that the legislature actually does any of these things. Repeatedly, she demonstrates legislative failure, such as when it allowed Christ Church followers in Oregon to act negligently towards their own children. Even after the scandal broke out, and children died... "the faith healing lobbyists... confused... ill informed legislators... already disposed to follow the requests of religious organizations... legislative incompetence is why Oregon's faith healing exemptions for murder... remain in place."(pp. 300-301) The only in depth review of this kind mentioned in the book is done by... a Judge! And yet Hamilton berates him for actually researching the common good! (pp. 123-125).
In my view, de minimis exceptions for religion should be crafted by the Judiciary, and not by the Legislature.
First, most of the cases where an exemption is sought are small issues of individual accommodation. In one case, a Sabbatarian seeked unemployment compensation after beig fired for refusing to work on her Sabbath (p. 216). In an Illinois High school, sports players were forbidden to wear headgear, including Yarmulkes (p. 123) Yarmulke wearers also encountered problems in the Air Force (p. 170), and religious prisoners wanted to avoid work details on Fridays (p. 213) and to receive Kosher food (p. 290) Hamilton's examples go on and on. These issues rise too frequently to be solvable by ex ante legislation, and legislation it too cumbersome a process to help the plaintiffs; When the US Supreme Court ruled in a Hamilton-esque fashion, it took Congress three years to overrule the legislation.
Second, the issues that arise are too narrow and too case specific. Can Congress really meddle with sportsmen's cloths and prisoner's diets? The Legislature, as we've seen, is unlikely to carry out the kind of expansive research that Hamilton thinks is the rational for having exclusive exemption making power, and is likely to appease popular or powerful religious interests without regard to the public good. Crucially, it has pressing business to attend to. The Legislature should deal with Crime, Economic Policy, and Environment. We really shouldn't let it be distracted into monitoring Yarmulkes.
Finally, there is the question of Church and State. The Purpose of the US First Amendment is to keep earthly Power out of the hands of the priests. If we want to do that, we have to give the religious avenues to pursue their interests other then the legislature. If, whenever an exemption, no matter how tiny, is needed, the Courts shall send the Churches to the legislative branches, the Churches shall develop powerful lobbying machinery. History and Hamilton's book tell us that such machinery will not be used merely for "de minimis" exemptions. Religion may end up ruling the law, instead of being under its rule.
While our scientists are on the verge of unlocking the secret to curing many serious diseases by means of insights gathered from stem cell research, there are some among us who would sacrifice the lives and well-being of the beneficiaries of such research at the altar of conformance to archaic sectarian dogma. And if that sounds rather uncompassionate, consider the truly hideous cases where some of these self-proclaimed keepers of "family values" actually perpetuate abuse. Yet when the civil authorities attempt to bring such perpetrators to justice, the religious authorities simply circle the wagons and deny culpability.
Marci Hamilton's book exposes the special protections that the religious institutions and particular religious officials enjoy when it comes to both the criminal justice system, as well as civil law. Now that this information has been concisely presented for everyone to examine in this groundbreaking volume, it's time for all of us to demand that religion stop being used as a cover for negligent and criminal activity.
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