Religion and the Constitution - Vol. 2

By Kent Greenawalt | Go to book overview

CHAPTER 13
Religious Groups Exercising
Government Power

A common feature of traditional established churches was that religious leaders occupied government positions or directly exercised authority over matters that modern states place within the domain of civil government, or both. Supreme Court justices and scholars agree that assigning government power to religious leaders or groups violates the Establishment Clause. According to the threefold Lemon test of unconstitutionality, this is one form of entanglement, a form that needs to be distinguished from administrative entanglement and political divisiveness. In two Supreme Court cases this kind of entanglement has played an important part. We shall look at those cases and their implications, also inquiring about one accepted form of clerical involvement in civil government, the performance of marriages, and about a much more controversial engagement by religious organizations, the running of selected prison programs.

The following chapter focuses on two interactions between civil law and religious standards: state enforcement of kosher standards and encouragement of Orthodox and Conservative Jewish husbands to grant their wives a religious divorce, called a get.


CHURCHES DECIDING ON LIQUOR LICENSES,
AND CLERGY AUTHORITY TO MARRY

The Supreme Court case most clearly representing the principle that religious groups cannot exercise government authority involved a challenge to a trivial law.1 In Massachusetts, towns were not allowed to issue liquor licenses to premises within five hundred feet of a church or school if its governing body objected in writing. A church close to the Grendel’s Den restaurant had opposed its receiving a liquor license. The highest court in Massachu-

1Larkin v. Grendel’s Den, 459 U.S. 116 (1982).

-221-

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