Book Review: God vs. the Gavel (2005)

Strictly by coincidence, the conflict between the state Department of Revenue and various churches over the state’s use tax hit the news as I was reading God vs. the Gavel: Religion and the Rule of Law. Written by Marci Hamilton, a professor at the Benjamin Cardozo School of Law, the book focuses on a somewhat relevant intersection of law and religion: when should religious conduct be exempted from generally applicable laws. Does exempting certain religious conduct raise issues under the First Amendment’s stricture against government involvement in the establishment of religion? Conversely, does the failure to do so mean government is treading on the free exercise rights guaranteed by that same amendment?

Hamilton’s bottom line is straightforward: the “no harm” rule. Simplistically stated, under that rule the law should accommodate religious conduct as long as that conduct does not cause harm to others. I largely agree but find difficulty with her belief that it is solely a legislative function to determine the extent to which the law should accommodate religion because it has the best tools by which to determine “the public good.”

I think the rise of the religious right and what we’ve seen in the South Dakota legislature helps undercut her contention. All too often, legislative bodies aren’t willing to take the heat or withstand pressure from mainstream religions in defining the “public good.” Moreover, if and when courts step in, they are too often condemned as being populated with “activist judges.” Yet, sadly, Hamilton is probably right that of all branches of government, the legislative is probably the most equipped to deal with these issues.

Hamilton’s analysis of and desire to apply the “no harm” rule is an excellent one. The question will always be whether legislative bodies do, in fact, consider the public good in making those decisions or whether they opt for religious and/or political expediency. Until then, the gavel is one of the few places minority religions or non-religionists can seek refuge from large religions imposing the will of god as they see it.

[Fundamentalists] advocate their own beliefs; everyone else should simply be happy that they are Americans, or perhaps they should just move. This is the sort of parochialism that makes what is a noble constitution in theory the laughing stock of the world.

Marci A. Hamilton, God vs. the Gavel

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