Religion and the Constitution - Vol. 1

Religion and the Constitution - Vol. 1

Religion and the Constitution - Vol. 1

Religion and the Constitution - Vol. 1


Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to their children--or the refusal of doctors to perform abortions? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.

In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause. Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.

Calling throughout for religion to be taken more seriously as a force for meaning in people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.


As I write this preface, the law of the religion clauses of the Constitution faces an uncertain future, with President George W. Bush appointing two new justices to a Supreme Court that has been sharply divided over the content of those clauses. Whatever the near-term effects of these appointments, we can expect debates about the meaning of religious liberty to persist, crucial as that liberty is to how we understand the society in which we live.

This volume, the first of two on the Free Exercise and Establishment clauses of the First Amendment and on the ideals of liberal democracy that those clauses represent, has been many years in the making, beginning back in 1994–95, when I was fortunate to be a Visiting Fellow at the Center for Human Values at Princeton University. Over that time, I have benefited enormously from the criticism of colleagues, discussions with students, some of whom have provided invaluable research help, and the help of assistants who have transformed my not so clear handwriting into readable drafts.

Among the academic institutions at which I have given presentations or attended conferences, and at which interchanges with colleagues have enriched my understanding, are the University of Illinois School of Law, University of Colorado, University of Notre Dame Law School, University of Texas Law School, University of Michigan School of Law, Loyola of Los Angeles School of Law, Loyola of Chicago School of Law, Villanova University School of Law, Fordham University School of Law, New York Law School, San Diego University School of Law, Harvard Center for Ethics and the Professions, Tulane Law School, Marshall-Whythe School of Law at William and Mary, Emory University School of Law, Catholic University, Marquette University, University of Pennsylvania School of Law, and my own institution, Columbia University. My greatest debt over the years has been to students in a seminar on the law of church and state, who have listened, mostly patiently, to my various ideas, and have responded with thoughtful suggestions of their own.

Among the colleagues who have contributed valuable criticisms and suggestions are Lawrence Alexander, Barbara Armacost, Vincent Blasi, Laura Brill, Michael Dorf, Harold Edgar, Melvin Eisenberg, Christopher Eisgruber, Stephen Ellmann, Cynthia Estlund, Richard Fallon, Jill Fisch, George Fletcher, Glenn George, Amy Gutmann, Alan Hyde, Jim Liebman, George . . .

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