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God vs. the Gavel: Religion and the Rule of Law, by Marci A. Hamilton
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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.
- Sales Rank: #2501494 in Books
- Brand: Brand: Cambridge University Press
- Published on: 2005-05-30
- Original language: English
- Number of items: 1
- Dimensions: 8.98" h x 1.34" w x 5.98" l, 1.51 pounds
- Binding: Hardcover
- 428 pages
Features
- Used Book in Good Condition
From Publishers Weekly
In this intelligent and forcefully argued book, Hamilton, a self-professed former "Polyanna" when it comes to religion, explores the thorny conflicts between religion and society, detailing how some religious groups and institutions misuse laws intended to protect religious freedoms to justify child abuse, employment discrimination and other ills. She is vocal in her criticism of efforts to exempt religious groups from the laws secular organizations must abide by, saving particular disdain for deal-making lawmakers, whom she compares to "hear-no-evil, see-no-evil, speak-no-evil monkeys." Hamilton dedicates about half of the book to examining six broad areas where religious groups enjoy special treatment-from marriage laws to preferential treatment within prisons to land use and local zoning ordinances. Passionately argued throughout, the book seems almost like Hamilton's atonement for her previous stance on these issues. (She quotes herself in the opening as having written 11 years ago that "the exercise of religion should trump most governmental regulation.") Certainly of interest to those in the judicial and legislative realms, Hamilton has written this book for the average reader, though some may be confused by the myriad legal precedents and her descriptions of legislative maneuvering.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
From Booklist
The First Amendment is stirring second thoughts among scholars wary of the social and legal consequences of religious liberty. Hamilton investigates numerous contentious religious issues-from headline cases in which Catholic clergy have sought clerical immunity for alleged acts of child abuse to obscure episodes in which Sikh parents have protested against school policies preventing sons from carrying ceremonial knives. But all of the various episodes Hamilton chronicles ultimately underscore one simple thesis: Americans' right to believe whatever religious doctrines they choose deserves absolute protection; Americans' right to act on religious belief should end whenever such actions harm or endanger others. It will disturb some readers that Hamilton invokes her largely negative view of American religionists as justification for giving secular politicians expansive powers to curb religious excesses, but as religious belief continues to diversify in multicultural America, the urgency of the issues here raised guarantees Hamilton many interested readers. Bryce Christensen
Copyright © American Library Association. All rights reserved
Review
"In this intelligent and forcefully argued book, Hamilton, a self-professed former "Polyanna" when it comes to religion, explores the thorny conflicts between religion and society, detailing how some religious groups and institutions misuse laws intended to protect religious freedoms to justify child abuse, employment discrimination and other ills." Publisher's Weekly
"Hamilton is predominantly compelling in her analysis of case law and writes with verve and well-tempered vehemence for the general reader. This book deserves shelf space at every library." Library Journal
"Professor Hamilton's book dazzles with lucid, original, and humane intelligence. The legal profession, academia and the general public will all enjoy learning from it. Let us hope the U.S. Supreme Court does not deviate again from its present conclusion on religious liberty as Hamilton explains it." Rita Swan, Ph.D., President, Children's Healthcare Is a Legal Duty
"Marci Hamilton has heroically and truthfully confronted the widespread American myth that all things done in the name of religion are good and deserving of constitutional protections. She has accurately named the harm done in the name of religion and how this harm is protected and enabled by the courts and law enforcement by way of the inaccurate application of the First Amendment. God vs. The Gavel is essential reading for those who insist that religion be true to its fundamental mission and not about victimizing people for the sake of power, privilege or financial gain." Thomas P. Doyle, O.P., J.C.D., C.A.D.C., Canon Lawyer, Advocate for those abused by Clergy
"Marci Hamilton is an original and provocative First Amendment scholar whose views have enriched and enlarged the debate about religious liberty. She saw the potential constitutional problems with laws like the Religious Freedom Restoration Act well before many others did. Her voice simply cannot be ignored." Nadine Strossen, Professor of Law, New York Law School, President of the American Civil Liberties Union
"A terrific discussion of the constitutional issues concerning religion that are so important right now in American society. Whether one agrees or disagrees with Professor Hamilton, one has to admire the clear, careful, and provocative way she approaches these key issues concerning the government and religion." Erwin Chemerinsky, Professor of Constitutional Law, Duke University, School of Law
"God vs. the Gavel will open your eyes, stun your soul, and strengthen your belief that no one, not even priests and ministers, are above the law. If you care about justice for those victimized by religion, you must read this book." Karol Jackowski, author of The Silence We Keep: A Nun's View of the Catholic Priest Scandal
"This is a truly important, if provocative work, which is essential reading for anyone who wishes to delve beneath the surface of the contemporary battle over religion and values." the Honorable Edward R. Becker
"A timely, hard hitting, passionate, yet scholarly inquiry into the clash between religion and the state. Hamilton, whose writing style is engagingly lucid and compelling, raises controversial questions and her powerful answers will enrich our understanding of the issues and provoke debate. No one will or should completely agree with Hamilton but no one concerned about the interface between religion and civil society can responsibly ignore her cogent arguments." Dean David Rudenstine, Benjamin N. Cardozo School of Law, Yeshiva University
"Hamilton offers a...courageous and thought-provoking work." FindLaw.com
"presents a strong case"
Clarion-Ledger
"Hamilton's strong assertion of order and public good in the face of claims to individual religious freedom is precisely the sort of springboard that can generate useful discussion, both in our classrooms and the public at large." - The Law and Politics Book Review Kevin R. den Dulk
"This book will make you upset and angry, but it merits the widest possible circulation. I wish I had written it." - Edd Doerr
Most helpful customer reviews
14 of 21 people found the following review helpful.
A Fresh Perspective
By Michael Stern
To say that this is a timely tome would be an exercise in stating the obvious.
While our scientists are on the verge of unlocking the secret to curing many serious diseases by means of insights gathered from stem cell research, there are some among us who would sacrifice the lives and well-being of the beneficiaries of such research at the altar of conformance to archaic sectarian dogma. And if that sounds rather uncompassionate, consider the truly hideous cases where some of these self-proclaimed keepers of "family values" actually perpetuate abuse. Yet when the civil authorities attempt to bring such perpetrators to justice, the religious authorities simply circle the wagons and deny culpability.
Marci Hamilton's book exposes the special protections that the religious institutions and particular religious officials enjoy when it comes to both the criminal justice system, as well as civil law. Now that this information has been concisely presented for everyone to examine in this groundbreaking volume, it's time for all of us to demand that religion stop being used as a cover for negligent and criminal activity.
5 of 10 people found the following review helpful.
Religion: Handle with Care
By Omer Belsky
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 after beig fired 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.
15 of 20 people found the following review helpful.
Brilliantly argued
By Harold McFarland
It would be hard to conceive of anyone who would argue that religion has not brought tremendous good to the world. Unfortunately, these same people can quite easily turn to one of the many incidents of our time where religion has also been used to harm others.
In her book God vs. The Gavel author Marci Hamilton argues that the church, while being allowed to perform their purpose and service in the world, should also be subject to the rule of law that they should cause no harm. The author takes a well-argued position that there should be some limit on religious freedom when it harms others. Examples include the child who can easily be treated for a life-threatening illness but is not due to the religious beliefs of the parents, or the family that moves into a quiet residential neighborhood but then finds a church starting in the house next door followed by houses demolished to make a large parking lot, etc. Some of the issues are not as far reaching as these and include such matters as allowing a beard to military personnel whose religion specifies it, or kosher food for a Jewish inmate in a prison. There are many, many of these places where the interests of the state and the church intersect.
This book is a call to all of us, including religious practitioners, to practice our religion as we will as long as it harms nobody else. The author's arguments are firmly grounded in the First Amendment and the intent of its framers. Brilliantly argued, although many will have difficulty with the idea of accountability to anyone other than the local church, God vs. The Gavel is recommended reading.
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