Religion and the State in American Law

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Boris I. Bittker, Scott C. Idleman, Frank S. Ravitch
  • New York, NY: 
    Cambridge University Press
    , October
     2015.
     992 pages.
     $44.99.
     Paperback.
    ISBN
    9781107419285.
     For other formats: Link to Publisher's Website.

Review

Both broad and deep, Religion and the State in American Law provides a well written, clear, and accessible tour of the vast terrain encompassing this subject. No volume can contain everything, but this one covers much—certainly more than most scholars of American religion consider in their own work. Serious and well-documented historical contextualization of the First Amendment religion clauses is provided in advance of analyses related to religion in contracts, taxation, employment, torts, and criminal and family law. Topics more familiar to students of religion and American law are interspersed among them, including explorations of internal congregational disputes, conflicts related to religious land use, religion and public education, public display of religious symbols, and religion in prisons and the military.

As one would expect, however, the work—though comprehensive—does favor the “law” side of the “religion and law” equation, likely more because of the presumed audience than any lack of sensitivity on the part of the authors. This is evident less in the expanse of topics noted above—topics with which it would be best for all students of American religion to be more familiar—than in the priority given to some of the issues discussed in the historical chapters. One example was the slight, but noticeable, imbalance between the discussion of the failed federal “Blaine” Amendment on the one hand, and the conflict between the leadership of the Church of Jesus Christ of Latter-Day Saints [LDS] and various state and federal governments on the other. Both occur in approximately the same era, and reasonable people could argue which has greater lasting significance. The “Blaine” Amendment not only provided the model for future statements on the relationship between public funds and religious education, but it also foreshadowed the dramatic shift that would occur when the First Amendment was later interpreted to protect citizens from state—rather than just federal—restrictions. Prosecution against the LDS, in turn, provided the foundation for the application of laws of “general applicability” to those with religious objections, a standard still used by the Court. Nonetheless, privileging the “Blaine” Amendment over the LDS litigation hints at a greater interest in what a government can or cannot do than in what a religious adherent can or cannot do.

This privileging by the authors distorts an understanding of the encounter between religion and law—common even among some scholars of religion—as one almost entirely defined by the First Amendment religion clauses. There is a near-total lack of consideration of the more than two-dozen decisions involving religion articulated by the Supreme Court between 1811 and 1877. Only two of these decisions are discussed: Terrett v. Taylor (1815), presented as significant because it was the first Supreme Court decision to address any aspect of religion, and Watson v. Jones (1871), in which the Court articulates a legal doctrine for settling internal church disputes. But of the other non-First Amendment decisions handed down by the Supreme Court during this same period—including Permoli v. 1st Municipality of New Orleans (1845) that specifically limited the First Amendment religion clauses to federal, rather than state or local matters—this work is silent.

Chapter 7, perhaps of greater common interest to scholars of religion, examines some of the difficulties related to legal attempts to define religion. Reflecting on the Supreme Court justices’ increased hesitation to maintain the very Christian—or even broadly theistic—definition employed by their nineteenth-century predecessors, the authors turn their attention away from an actual definition and toward the parameters of any attempt to define—many of which would, in different terms, be familiar to any religion scholar who has grappled with similar issues. Some attention is paid to the few attempts at definitions emerging from lower federal courts, most notably Judge Arlin Adams’s 1979 effort in Malnak v. Yogi, and Judge Clarence Brimmer’s 1995 attempt in United States v. Meyers. However, little connection is made in this same chapter 7 to discussions in other chapters—addressing tax law and religious practice in prison, for example—where definitions of religion function de facto, rather than de jure, with great authority and impact. This reviewer would suggest that all legal scholars venture a bit more into the world of comparative religions, starting with Jonathan Z. Smith’s “God Save This Honourable Court: Religion and Civic Discourse” [Relating Religion: Essays in the Study of Religion, University of Chicago Press, 2004].

Initially undertaken by co-author Boris I. Bittker—best known for his examination of reparations claims by the descendents of enslaved African Americans—this volume was completed by Scott C. Idleman and Frank S. Ravitch after Bittker’s death in 2005. These collaborations work to the benefit of the volume and its readers, particularly those from the “religion” side of the “religion and law” equation. There is little in the volume to identify particular topics with specific co-authors; the introduction to the chapter on religion and tax law specifically begs the forgiveness of readers who might expect it to have been written by Bittker as a well-respected scholar in that field. Nonetheless, the combination of such expertise with the broad sensitivity to religion in American law brought by Idleman and Ravitch gives Religion and the State in American Law its strong administrative as well as judicial legal perspective.

This volume is unlikely to find a place in most religious studies classrooms but, if only for the treasure contained in the footnotes, this volume—identified on Ravitch’s Michigan State University College of Law faculty web page as “the first comprehensive treatise on Law and Religion in more than one hundred years,” should be on the shelf of every scholar of religion and American constitutional law.

About the Reviewer(s): 

Eric Michael Mazur is religion, law, & politics fellow at the Center for the Study of Religious Freedom at Virginia Wesleyan College.

Date of Review: 
March 30, 2017
About the Author(s)/Editor(s)/Translator(s): 

Boris Bittker (1916–2005) was a professor at the Yale Law School for over five decades. The leading tax scholar of his era, he helped pioneer the study of federal tax law as a serious academic discipline. Updated versions of his casebooks, including the groundbreaking Estate and Gift Taxation (1951), are still in use today.
Scott C. Idleman is Professor of Law at Marquette University Law School. He has written articles on constitutional law, law and religion, federal courts, and military law in the nation's top journals, including the Cornell Law Review, the Virginia Law Review, and the University of Pennsylvania Law Review.
Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law and Religion at Michigan State University College of Law. He is the author of numerous peer-reviewed articles on law and religion, civil rights, and constitutional law, and frequently serves as an expert in the media on the same topics. His most recent book is Freedom's Edge: Religious Freedom, Sexual Freedom, and the Future of America (2016).

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