Wrestling With God: The Courts’ Tortuous Treatment of Religion

by Patrick M. Garry

CUA Press, 2006

230 pages, $49.95

To order: (800) 537-5487

cuapress.cua.edu

 The First Amendment guarantees Americans the “free exercise” of religion. If the law can’t interfere with the practice of faith, why have courts ruled that Catholic hospitals must provide abortifacient drugs? Or that a landlord cannot refuse to rent an apartment to people living together, despite the landlord’s religious objections to non-marital cohabitation?

If freedom of religion is a constitutionally guaranteed right, why can’t privately funded manger scenes stand in public places without being diluted?

If you’ve ever wondered why “free exercise” of religion has been taking such a beating at the hands of the courts for the past half century, read this book. If you can do so on or around the Fourth of July, all the better.

Patrick Garry, professor of law at the University of South Dakota, lucidly explains how the courts have warped the First Amendment through their interpretations of its two religion clauses.

Two provisions in the First Amendment are supposed to protect religious freedom: the “no establishment” clause, which bars laws that would give any one denomination a privileged status, and the “free exercise” clause, which was intended to exclude legal interference with religious practice.

“Free exercise,” Garry insists, has primacy: The Founding Fathers wrote the “non-establishment” clause to protect free exercise by preventing any one church from acquiring a special status, like Britain’s Anglican Church did in the United Kingdom.

“The first and foremost concern of the framers of the First Amendment was not to create a separation of church and state, but to guarantee religious freedom,” he writes. “And the absence of an established church was just one aspect of achieving freedom of religion.”

So how have we gotten into the constitutional morass we’re in, where “freedom of speech” ensures unbridled license to plunge crucifixes into pails of urine in public museums, but a public school teacher cannot wear a cross around her neck because it might make one child feel proselytized or alienated?

Garry demonstrates how, since the 1940s, the courts have inverted the interpretation of the First Amendment, expansively focusing on the non-establishment clause (taken to exclude preference of all religion rather than preference of a religion) to the detriment of the free-exercise clause.

The courts’ interpretation of the non-establishment and free-exercise clauses has put the two at loggerheads. This has inevitably led to free exercise being trumped by non-establishment, subjecting religious freedom to all sorts of limits.

So it is that Holocaust survivors must bear with neo-Nazis marching through their community in the name of free speech, but one atheist’s feelings holds veto power over a commencement prayer.

Garry doesn’t just complain. He offers a positive theory of the First Amendment that recognizes the Constitution as protective of religious freedom in practice. While the work of a legal scholar, Wrestling With God is a brisk read. Anyone interested in the state of church-state relations ought to have a look. My sole complaint would be over its steep price, an indication that the book is primarily intended for use in college classrooms. May it find its way into many of those — and not a few homes, too. 

John M. Grondelski writes from

Washington, D.C.