God vs. the Gavel: Religion and the Rule of Law | 
 enlarge | Author: Marci A. Hamilton
Creator: Edward R. Becker
Publisher: Cambridge University Press
Category: Book
List Price: $16.99
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Sales Rank: 501480
Media: Paperback
Number Of Items: 1
Pages: 434
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Dimensions (in): 8.6 x 5.5 x 1
ISBN: 0521703387
Dewey Decimal Number: 340
EAN: 9780521703383
ASIN: 0521703387
Publication Date: September 17, 2007
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Product Description
God vs. the Gavel challenges the pervasive assumption that all religious conduct deserves constitutional protection. While religious conduct provides many benefits to society, it is not always benign. The thesis of the book is that anyone who harms another person should be governed by the laws that govern everyone else - and truth be told, religion is capable of great harm.
Book Description
God vs. the Gavel challenges the pervasive assumption that all religious conduct deserves constitutional protection. The thesis of the book is that anyone who harms another person should be governed by the laws that govern everyone else - and truth be told, religion is capable of great harm.
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| Customer Reviews: Read 5 more reviews...
 Religion: Handle with Care March 28, 2008
Religion is a powerful thing: It can do great good and great evil, Marci Hamilton reminds us. As a lawyer, her question is how to regulate religion? Hamilton offers a deceptively simple modus Vivendi for religion and the law - namely, that religion should be subject to neutral laws just like anyone else. When there is a need for small, minor exceptions, those should be enacted by the legislature, and never by the Courts.
I disagree with both parts of Hamilton's solution: In my view Religion, being a mighty force, should be subjected to special regulation. And the main crafters of that regulation should be the Courts, not the legislators.
As Hamilton rightly stresses, Religion can bring both great good and great ill. Thus it makes no sense to think that general regulations, applicable to less powerful forces of society, are straightforwardly applicable to religion. Religion needs its own regulation: at times, it should be regulated more fiercely then non-religion; At other times, it should be allowed more leniency.
Take Creationism; if parents would like their children to study Austrian School Economics or Marxism in Economics class, the Courts wouldn't intervene. But when Christian parents try to sneak "creation science" into biology class, Lawsuits abound, and succeed. Is that unfair discrimination against religion? Surely not. First, unlike economics, religion is a divisive. As Richard Dawkins likes to point out (e.g. in The God Delusion), we have Christian, Muslim and Jewish Children, but not Marxist or Neo-Classical ones. Therefore a school policy reinforcing religion can cause severe tensions (and does: see Monkey Girl: Evolution, Education, Religion, and the Battle for America's Soul for recent shenanigans in Dover, PA). Second, religion is one of the very few forces capable of massively infecting schools with pseudo-science. The risk of an "Austrian School" epidemic is low, and so regulating against it is unnecessary.
For an opposite example, see the Clergy Child Abuse scandal. Hamilton documents the horrifying child abuse in the Church. The current US scandal is one of many, and the reason for it seems to be self evident: By offering celibate men access to children, the priesthood is a natural calling for a pedophile unwilling or unable to marry (Full Disclosure: There are conflicting studies on the topic). Now suppose that a secular organization would offer activities for children guided exclusively by celibate men. I think it should be banned, or at least closely monitored by the law enforcement and child welfare authorities. But such treatment of the Roman Catholic Church is unthinkable, politically unfeasible, and probably harmful: the appearance of religious prosecution would trump the benefits.
Hamilton agrees that special ("de minimis") exemptions from regulation should be offered to religion: "If an exemption will not harm others, it should be provided - by the legislature". (p. 275).Why should such exemption be provided by the legislature rather than the Judiciary? The only answer I can discern in Hamilton's book is an alleged competency of the legislature to do so in a, well, judicious manner. "[The legislature] may decide to investigate a social problem in depth ... [it should] balance[e] the value of religious liberty over and against the harm to others if a religious... institution is permitted to act contrary to the law" (p. 297). The key word here is "may". Hamilton offers no evidence that the legislature actually does any of these things. Repeatedly, she demonstrates legislative failure, such as when it allowed Christ Church followers in Oregon to act negligently towards their own children. Even after the scandal broke out, and children died... "the faith healing lobbyists... confused... ill informed legislators... already disposed to follow the requests of religious organizations... legislative incompetence is why Oregon's faith healing exemptions for murder... remain in place."(pp. 300-301) The only in depth review of this kind mentioned in the book is done by... a Judge! And yet Hamilton berates him for actually researching the common good! (pp. 123-125).
In my view, de minimis exceptions for religion should be crafted by the Judiciary, and not by the Legislature.
First, most of the cases where an exemption is sought are small issues of individual accommodation. In one case, a Sabbatarian seeked unemployment compensation for refusing to work on her Sabbath (p. 216). In an Illinois High school, sports players were forbidden to wear headgear, including Yarmulkes (p. 123) Yarmulke wearers also encountered problems in the Air Force (p. 170), and religious prisoners wanted to avoid work details on Fridays (p. 213) and to receive Kosher food (p. 290) Hamilton's examples go on and on. These issues rise too frequently to be solvable by ex ante legislation, and legislation it too cumbersome a process to help the plaintiffs; When the US Supreme Court ruled in a Hamilton-esque fashion, it took Congress three years to overrule the legislation.
Second, the issues that arise are too narrow and too case specific. Can Congress really meddle with sportsmen's cloths and prisoner's diets? The Legislature, as we've seen, is unlikely to carry out the kind of expansive research that Hamilton thinks is the rational for having exclusive exemption making power, and is likely to appease popular or powerful religious interests without regard to the public good. Crucially, it has pressing business to attend to. The Legislature should deal with Crime, Economic Policy, and Environment. We really shouldn't let it be distracted into monitoring Yarmulkes.
Finally, there is the question of Church and State. The Purpose of the US First Amendment is to keep earthly Power out of the hands of the priests. If we want to do that, we have to give the religious avenues to pursue their interests other then the legislature. If, whenever an exemption, no matter how tiny, is needed, the Courts shall send the Churches to the legislative branches, the Churches shall develop powerful lobbying machinery. History and Hamilton's book tell us that such machinery will not be used merely for "de minimis" exemptions. Religion may end up ruling the law, instead of being under its rule.
 Separation of Church and State Does Not Permit Harmful Acts August 3, 2005
13 out of 17 found this review helpful
We live in a time where extremes of behavior seem to have almost become the norm. We have a long tradition of separation of church and state, where the rules of church and state seem to operate in parallel with almost no touching. And we seem to be in a time where the most fundamentalist Christian beliefs have become stronger in America while the most fundamentalist Islamic beliefs are being used to build an army for a holy war against America, the Great Satan.
At the same time we see that under the guise of religious behavior we find Mormon polygamous families where the patriarch marries the thirteen year old children of other members of their cult. We find that Catholic priests, once held at the highest esteem are being regularly accused of molesting young boys. We find families holding their children out of schools that teach what they decide offends their religion, leaving their children ill prepared to face a life outside their particular restricted community. We find other families that because of their religious beliefs refuse medical care that would save the life of children.
This book covers these interactions of the church and the state from the standpoint of the United States Constitution and the subsequent laws that have been passed by Congress. It is particularily apt for this time in our history and very highly recommended.
A Balanced Look at Righting Judicial Incompetence July 31, 2005
37 out of 45 found this review helpful
When you think of people who break the law and get by with it, what kind of person comes to mind? A rogue bureaucrat who can arrange an audit of anyone who opposes him? A cop on the take, who can hide some evidence and manufacture the rest? A celebrity who can buy a trial, and later write a book about it?
If so, expand your thinking a bit. The ability to break the law goes beyond individuals whom we easily recognize as seedy, scheming characters. Some people use our most cherished institutions as vehicles for such criminal activities as child abuse, murder, and theft. Those seem like strong words at first blush, but case histories show those claims are accurate.
And the courts routinely aid and abet these crimes by providing exceptional protection to those who commit them. Thanks to Constitution-violating court decisions, criminals who hide behind the mantle of religion remain free to strike again and again. At the heart of this maelstrom of magisterial malfeasance, we find the issue of church vs. state. Hamilton looks at this issue closely, and lays to rest the myths upon which courts justify their complicity with criminals who happen to represent religious organizations. Replace the myths with truths, and the entire house of cards tumbles.
The courts, in their support of religious offenders, are doing religious organizations no favor. Just look at what has happened to the Catholic church. The Catholic church continues to harbor pedophile priests, and the courts help them do it. This has diminished the church to most Catholics--many of whom are becoming ex-Catholics. Consequently, many Catholic schools are closing their doors and the treasuries of Catholic congregations are on life support.
The Catholic church isn't alone in sowing the seeds of its own destruction. Hamilton shares several examples--from several religions, including Jewish, Protestant, Catholic, and Muslim--where the leaders of a religious group show complete disregard for the public good or for people outside their group. In many of these cases, the religious leaders behaved so poorly that you have to wonder if they are religious people at all. Innocent citizens then turn to their government for assistance and come away with nothing but a judicial farce.
God vs. the Gavel takes us into the world of judicial incompetence that ignores the concepts of fairness and justice. It's a place where the separation of powers isn't, but where the corruption of power is. Judges routinely misconstrue, misapply, and mislegislate from the bench. This, despite the fact they have a duty to discern the facts and are Constitutionally barred from legislating.
Hamilton isn't on a crusade against religion, religious organizations, or religious people. But she is against using religion as a license for behaving in a loveless, predatory manner that hurts and kills other people. She is opposed to using "religious freedom" as a free pass for torturing children. She is opposed to using "religious freedom" as justification for destroying entire neighborhoods. She is opposed to using "religious freedom" to justify forcing our prisons to spend millions of dollars "accommodating" dozens of different religious meal restrictions, religious reading requirements, and the demands of new "religions" formed for the express purpose of gaming the system. Buy this book for no other reason than to read the lists of lunacy on page 157 - 161, and you have spent your money well.
So, what does Hamilton want, and why does she go through such effort to show us what's wrong with the status quo? What Hamilton is asking for is a balanced approach that respects the rights of everyone. In her vision of how things should be, judges would abandon circular reasoning and twisted logic--in favor of common sense.
She explains the "do no harm" principle, and she shows us how reasonable accommodation of religion can and does work. For example, the US military changed its policy to allow soldiers to wear unobtrusive religious gear such as yarmulkes and crosses. That's very different from using "religious freedom" to sentence an innocent child to death by refusing life-saving blood transfusion. And it's very different from ignoring zoning laws so a religious meeting place transforms a quiet suburban neighborhood into a high-traffic thoroughfare.
God vs. the Gavel is more than just a fascinating expose. Hamilton also offers a vision of how things should be. People who use religion as a license to victimize others will oppose losing that license, and will thus oppose the change that Hamilton is trying to bring about. But people who, like Hamilton, see religion as bringing meaning and guidance to life will very likely agree with her.
Religious leaders who seek to be above morality and the law often claim First Amendment rights. And the courts normally comply with those leaders in knee-jerk fashion, even when no First Amendment issue is involved.
The First Amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Nothing in the First Amendment gives any religion special status under the law. The First Amendment merely bars Congress from making laws against particular religions. Hamilton explains the history and reasoning behind this right. But the courts routinely ignore the Constitution, history, and reasoning--so that they can give religious organizations or their leader special status under the law. The consequences of that special status should have us all worried.
A note on the writing. I review quite a few books, and have grown disgusted with the sloppiness trend. Thus, it is now my policy to let potential readers and buyers know about the quality of the writing itself. Form is important, as it dictates readability. Fortunately, this book scored very well on substance and on form. This book actually uses Standard Written English (SWE). This is a refreshing change from the Pidgin English that so many of today's authors slop onto our reading palettes. The care taken in writing this book shows that the author and publisher actually cared about the reader. That's a huge plus.
Refreshing yet Flawed July 21, 2005
10 out of 20 found this review helpful
Ms Hamilton's book on the dangers of relgious privilege
above and beyond the law in the U.S. is commendable in many repects. But the author is lacking in any basic understanding of federal
Indian law, the history of institutionalized attacks on American Indian religious freedom, and the Employment Division of Oregon v Smith (1990) decision.
First, the drug counselors were not "private," but worked for the state of Oregon. Smith was a member of the Native American Church. This religion is recognized by mainstream denominations as a legitimate and longstanding church (official status since the early 20th centiury, traditional practice going back centuries). It probably has at least 250,00 adherents in the U.S. Peyote is the NAC's sacrament, analagous to bread and wine for Christians. The peyote is harvested and used in a sacred manner. It is not some hippie drug-trip. Smith told his emplopyer that he would be attending a NAC ceremony over a weekend. In 1990 Oregon considered peyote a controlled substance illegal to possess or use. Upon his return to work on Monday, Smith admitted frankly that he had ingested peyote at the NAC ceremony. For this he was fired from his job. He filed for unemployment benefits from the state of Oregon.
Clearly the state of Oregon violated Smith's first amendment freedom of religion. Scalia's dismissive ruling brushed American Indian religious rights aside by implying that the constitution cannot protect non-mainstream religious practices. This was not a case of religious privilege but first amendment rights. Congress agreed and passed the Native American Free Exercise religious Act in 1994 which now protects NAC use of peyote in its sacred ceremonies.
Hamilton's lack of knowledge or empathy for American Indian religious issues is an all too prevalent norm in American law schools and the legal profession.
Brilliant AND Accessible June 28, 2005
18 out of 20 found this review helpful
A must-read for lawyers, academics, theologians, and curious human beings alike, God vs. The Gavel competently and thoroughly lends insight to the issue of religion and its relationship to the United States Constitution. Professor Hamilton, through her lively style of writing, argues that religious groups should not receive heightened constitutional protection when their actions harm others. While this theory is a seemingly simple and practical one, Hamilton successfully draws her readers into an intricate -- indeed intriguing -- web of religion, law, and their interplay in contemporary society. Easy to understand yet sophisticated in scope, Hamilton's work is a truly impressive accomplishment, and one that is sure to draw attention around the country and across the globe.
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