Law and Religion: A Critical Anthology

Law and Religion: A Critical Anthology

Law and Religion: A Critical Anthology

Law and Religion: A Critical Anthology

Synopsis

"Korean unification is one of the most important issues on the international agenda today. Hart-Landsberg's broad-ranging inquiry develops a perspective that is rarely heard, and that merits careful attention. It is a valuable contribution to a debate that should not be delayed."
--Noam Chomsky

Excerpt

The relationship between law and religion in America has become increasingly controversial since World War II. The Supreme Court’s growing solicitude for free exercise and establishment clause claims partially explains this development. Before the 1940s, the Court did not even recognize the religion clauses as applying against the state governments. After the war, though, the Court periodically—albeit not consistently—has found that governmental actions contravene the first amendment. For instance, in one of the most contentious such decisions, Engel v. Vitale, decided in 1962, the Court held that the daily recitation of a supposedly nondenominational prayer in the public schools violated the establishment clause. Engel provoked a “savage controversy,” with widespread ridicule of the Court, which, according to many, “had betrayed the American way of life.” A Wall Street Journal editorial lamented the likely implications of the Court’s decision: “Poor kids, if they can’t even sing Christmas carols.” Engel led to a spurt of proposals to add a Christian amendment to the Constitution; indeed, the 1964 platform of the Republican Party called for such an amendment.

Even with the failure of such constitutional amendments, one should not assume that the Court provides the definitive final word on such intertwined legal and religious matters. Generally, individuals do not reflexively accept the Court’s position on a salient public issue. Unsurprisingly, then, the New York Times reported in 1994 that despite Engel and its progeny, “prayer is increasingly a part of school activities from early-morning moments of silence to lunchtime prayer sessions to pre-football-game prayers for both players and fans…. [P]articularly in the South, religious clubs, prayer groups and pro-prayer students and community groups are making religion and prayer part of the school day.” In fact, the Times added, a school superintendent in a town near Austin, Texas, was removed from office after issuing a directive that prohibited prayers at football games and other school events.

Apart from the large number of postwar Supreme Court cases expressly dealing with the religion clauses, another Court decision further fueled the debates over the relationship between law and religion. Roe v. Wade, decided in 1973, held that antiabortion laws violated the due process clause of the fourteenth amendment. Roe sparked a long-running (and still-going) political dispute that swirled law and . . .

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