Religion and the American Constitutional Experiment

by John Witte, Joel A. Nichols, Richard W. Garnett

Overview

This accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom - liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom - covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests. Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.

Product Details

ISBN-13:	9780197587645
Publisher:	Oxford University Press
Publication date:	05/13/2022
Sold by:	Barnes & Noble
Format:	eBook
File size:	2 MB

About the Author

John Witte, Jr. is Woodruff University Professor, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. A leading scholar of legal history, human rights, and law and religion, he has published 300 articles and 40 books, in 15 languages, including The Reformation of Rights; Christianity and Human Rights; Religion and Human Rights; No Establishment of Religion; Church, State, and Family; Faith, Freedom, and Family; and The Blessings of Liberty. Joel A. Nichols is Interim Dean and Mengler Chair in Law at the University of St. Thomas (MN). His work draws upon his degrees and expertise in both law and theology. He has published three books and more than two dozen articles, typically on the intersection of law and religion. Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and Director of the Program on Church, State, and Society at the University of Notre Dame, where he teaches and writes about religious freedom, constitutional and criminal law, and other matters.

Table of Contents

List of Tables ix Preface xi Introduction 1 The American Experiment in Historical Context The First Millennium The Papal Revolution The Protestant Reformation Religious Establishment versus Religious Freedom in Europe Colonization and Experimentation 2 The Theology and Politics of the Religion Clauses Puritan Views Evangelical Views Enlightenment Views Civic Republican Views Summary and Conclusions 3 The Essential Rights and Liberties of Religion Liberty of Conscience Free Exercise of Religion Religious Pluralism Religious Equality Separation of Church and State Disestablishment of Religion Summary and Conclusions 4 Forging the First Amendment Religion Clauses Religion and the Continental Congress The 1787 Constitutional Convention Ratification and Proposed Amendments Drafting the First Amendment Religion Clauses "Original Intent": Interpreting the Final Text Summary and Conclusions 5 The Free Exercise of Religion: Mapping the Doctrinal Terrain Bringing a Free Exercise Case Factual Clusters of Free Exercise Cases Shifting Standards of Review in Free Exercise Cases vi Contents 6 First Amendment Religious Exercise, Expression, and Exemption Free Exercise and Polygamy (1879- 1890) Free Exercise and Conscientious Objection (1918- 1971) Freedom and Equality of Religious Expression (1940- 2015) Liberty of Conscience and Free Exercise Exemptions (1943- 1989) Summary and Conclusions 7 The Free Exercise of Religion: Neutrality, Nondiscrimination, and Statutory Rights Neutralizing the Free Exercise Clause (1982- 1990) Neutrality and No State Discrimination Against Religion (1993- ) Neutrality and Nondiscrimination in State Aid to Religious Education Neutrality and Nondiscrimination in the Time of Covid State Neutrality in Balancing Religious Liberty and Sexual Liberty Free Exercise of Religion as a Statutory Right (1993- ) RFRA Cases in the Supreme Court RLUIPA Cases in the Supreme Court Summary and Conclusions 8 Modern Establishment Law: Mapping the Doctrinal Terrain Bringing an Establishment Clause Case Mapping the Establishment Clause Cases Separationism Accommodationism Neutrality and the Lemon Test Endorsement No Coercion Equal Treatment/ Equal Access History and Tradition Summary and Conclusions 9 Religion and Public Education: No Establishment of Religion, But Equal Access for Religion Separationist Cases (1948- 2000) Equal Access Cases (1981- ) Limits on Equal Access? Summary and Conclusions 10 Government and Religious Education: From Accommodation to Separation to Equality Accommodationist Cases (1908- 1977) Separationist Cases (1971- 1985) Equal Treatment Cases (1983- 2002) Statutes, Free Exercise, and Equal Access Rights (2004- ) Summary and Conclusions 11 Religion and Public Life Sabbath Day Rules 282 Legislative Chaplains and Prayers Religious Symbols Patterns and Principles Summary and Conclusions 12 The Freedoms of Religious Organizations Religious Polity and Structures Religious Structures Legal Structures Religious Property Disputes Standard Legal Principles (1815- 1914) Deference (1872- 1976) Neutral Principles (1979- ) Labor and Employment Social Services and Taxation Social Services Taxation Summary and Conclusions Concluding Reflections Signs of Trouble Enduring Principles, New Applications Appendix 1: Drafts of Federal Religion Clauses (1787- 1789) Appendix 2: United States Supreme Court Decisions Relating to Religious Liberty (1815- 2021) Index

Editorial Reviews

Witte (law and ethics, Emory U., Atlanta) aspires to introduce students, provoke specialists, and invite the public to view afresh the US experiment in religious rights and liberties. He combines historical, doctrinal, and comparative methods to recount the whole story from the codifying of the First Amendment in 1789 to the Supreme Court's recent interpretations. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

"This magisterial revision of Religion and the American Constitutional Experiment is an accessible and authoritative guide through the remarkable but tortuous history of America's unique approach to religious freedom. Clear without over-simplification, comprehensive without pedantry, it portrays a system that enabled the United States to become a society where members of all religions and no religion could not only live together in relative harmony but flourish." — Mary Ann Glendon, Learned Hand Professor of Law emerita, Harvard University

"This book by John Witte and Joel Nichols is probably the best combination that exists of historical background, theoretical understanding, and legal doctrines of the religion clauses. It allows scholars, students, and other citizens to grasp the history behind the clauses without undertaking full-scale research on their own. The book is also a superb source to understand modern controversies and how courts are dealing with them." —Kent Greenawalt, University Professor, Columbia Law School

"In evenhanded and clear prose, Witte and Nichols provide a clear and comprehensive history of religious liberty in the United States. Broad in scope, updated with the latest developments, and supplemented with impressive appendices that catalog state constitutional provisions and Supreme Court decisions, this text offers cogent analysis from leading scholars of law and religion. Already a trusted and valuable classroom resource, this book will also enlighten those seeking a deeper understanding of the contours of this important topic."—Amy E. Black, Professor of Political Science, Wheaton College

"The authors provide clear description of complicated case law and public policy for students and citizens. They reveal patterns and principles on a subject often caricatured by wild generalizations and widespread confusion. Academics and experts across a range of fields and professions will appreciate their fine analysis and comprehensive scholarship. The authors refute a weak postmodernist critique of religious freedom and offer a provocative perspective on the history of liberty of conscience."—Reading Religion

"In the inevitably contentious field of church-state constitutional issues in America, it is rare to find a volume that is as accessible, thoughtful, and measured as Religion and the American Constitutional Experiment by John Witte, Jr. and Joel A. Nichols. Their remarkable ability to create order in the midst of the chaos of the ever-changing constitutional law of religious liberty makes this an ideal volume for classroom use, and this new fourth edition updates the church-state story through the US Supreme Court s 2015
decisions."—Journal of Church and State

From the Publisher