Religion and American Law

881 Pages·2008·4.35 MB·English

by  Paul Finkelman

Religion and American Law
GARLAND REFERENCE LIBRARY OF THE HUMANITIES (VOL. 1548)
Religion and American Law:
An Encyclopedia
Editor
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
GARLAND PUBLISHING, INC.
A MEMBER OF THE TAYLOR & FRANCIS GROUP
New York & London
2000
Published in 2000 by
Garland Publishing Inc.
A Member of the Taylor & Francis Group
19 Union Square West
NewYork, NY 10003
This edition published in the Taylor & Francis e-Library, 2005.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of
thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
Copyright © 2000 by Paul Finkelman
All rights reserved. No part of this book may be reprinted or reproduced or utilized
in any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage
or retrieval system, without written permission from the publishers.
Library of Congress Cataloging-in-Publication Data is available from the
Library of Congress
ISBN 0-203-42822-6 Master e-book ISBN
ISBN 0-203-44116-8 (Adobe eReader Format)
I dedicate this book to the memory of
Rose Sobel Finkelman and Hyman Finkelman
and
Mashah Yourkowsky Dobbis and Isadore Dobbis
who came to the United States seeking religious liberty
and found it.
Contents
Introduction vi
Contributors x
The Encyclopedia 1
Index of Cases 836
Subject Index 852
Introduction
“We are a religious people whose institutions presuppose a Supreme Being.” So
wrote Justice William O.Douglas in Zorach v. Clausen in 1952. He was, of
course, right. We announce our trust in God on our money. We proclaim our
allegience to our flag and our Republic, in the same sentence that we declare our
nation is “under God.” Our Supreme Court begins each term with a plea that
“God save the United States and this honorable Court.” Almost every president
has invoked God in his inaugural address as well as in moments of national crisis
or celebration.
We are equally a diverse people, who worship in different ways, to different
cadences, and indeed to different Gods. Our holy texts—the Gospels, the
Pentateuch, the Koran, the Book of Mormon, the Granth Sahib, the Bhagavad
Giti, and Science and Health with Key to the Scriptures—tell different stories,
proclaim different values, and reflect the cultures of the world. Our holy
languagesarevaried,andweprayintheGermanofLuthei;theEnglishofKing
James I, Paul of Tarsus’s Greek, the Latin of Constantine, the Hebrew of Moses,
the Aramaic of the Sages of the Talmud as well as Jesus of Nazareth, the Arabic
of Muhammad, and the Sanskrit of Sri Ramakrishna.
We pray to the sounds of music and we pray in silence. Our sounds of worship
include the organ, the piano, guitar, the horn of a ram, the jazz band, and most
often, that most elegant and divine of all instruments, the human voice. We pray
with heads covered and uncovered, knees bent and straight, standing, sitting,
kneeling, and prostrate on a prayer rug. We pray next to our families and
separated by age and gender. We attend synagogues, mosques, churches,
temples, Kingdom Halls, cathedrals, meeting houses, and gurdwaras. A holy
place may be a building consecrated by an ordained member of the clergy or for
Native Americans a mountain, waterfall, or volcano. We are led in prayers by
imams, priests, ministers, preachers, shamans, rabbis, santeros, bishops, and
yogis. Scattered throughout the nation are many who believe in no supreme
being, and actively reject religion in any form or context.
Our rituals and our beliefs are as varied as our faiths. Some faiths abstain from
alcohol while others require it. Catholicism believes that wine has been
transformed by ritual into the blood of Christ through the incantations of a priest.
Some faiths protect the lives of animals while others require the sacrifice of
vii
animals. Some Americans are pacifists, others are required by their faith to
symbolically carry a weapon. Some declare abortion under any circumstances to
be a sin; others do not; and some declare that it is a sin not to have an abortion if
the mother’s life is at risk. Some faiths and churches have endowed and
supported important hospitals and medical schools, but some of faiths reject
intervention by modern medical science, refusing medical aid even at the cost of
lives.
A religious people of many faiths and practices, we are also a democractic
people, governed by the will of the majority and the rule of law. But we are also
a people governed by a Constitution and a body of laws that protect individual
liberty, including the right to worship our religion as we please. Central to our
Constitution is the First Amendment, which begins: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.”
There are, of course, great tensions between these aspects of the United States.
When our institutions “presuppose a Supreme Being,” they also threaten to
establish the majority’s view of what that Supreme Being might be or how that
Supreme Being should be honored or even worshiped. Thus, any governmental
institutionalization of the Supreme Being—any governmental establishment of
religion—threatens to undermine the protection for religious minorities. On the
other hand, to respect or protect the unique and unusual practices of minority
faiths may lead to a kind of establishment for those religions by exempting their
members from the rules the rest of society must follow.
The problem of church and state remains vibrant and meaningful in our
culture.TheSupremeCourthasheardmorethanthreehundredcasesthattouch
on these issues. State and lower federal courts have heard thousands more. The
jurisprudence of religion in complicated and often confusing. It highlights the
tensions of our political culture and our democratic society. Two examples
illustrate this complex relationship:
In Engle v. Vitale (1962) and School District of Abington v. Schempp (1963)
the Supreme Court unambiguously held that schools could not sponsor prayer or
Bible readings and that teachers, principals, and other school officials and
employees could not lead prayers. To do so, according to the Court, was to
establish religion in a government institution. Despite these cases, state
legislatures have passed numerous acts to circumvent the Supreme Court ruling.
Statelawmakerspasssuchlawsbecausetheyarepopularwithconstitutentsand
are often excellent campaign issues. Time after time the federal courts have
struck down such laws, but legislatures never seem to get the message.
Meanwhile, we know that in numerous school districts teachers lead prayers and
students say them every day, simply ignoring the law of the land. Parents and
students who object to such prayers are often afraid to complain because of social
pressure. The issue of school prayer illustrates the tension beween democracy
and constitutional government. The continuations of school prayers in some
schools—and the intimidation of those who object to such prayers—is a modern-
viii
day example of the “tyranny of the majority” that the French scholar Alexis de
Tocqueville identified in the 1830s.
The flip side of the tyranny of the majority can be seen in the Religious
Freedom Restoration Act (RFRA). In Employment Division, Department of
Human Resources of Oregon v. Smith (1990) the Supreme Court ruled that states
did not need to justify burdens on religious exercise with a compelling state
interest. Instead, the Court ruled that religious exemptions to generally applicable
laws are not constitutionally required. In 1993 Congress tried to reverse this
ruling and bring back the compelling state interest test in cases involving the free
exercise of religion. In passing this act Congress did not try to impose a “tyranny
of the majority,” but rather tried to get all majorities to protect minority
religions. The law was passed “to restore the compelling interest test” as it had
exised before Oregon v. Smith, and “to provide a cause of action to persons
whose religious exercise is burdened by government.” The law declared that
“Governmentshallnotburdenaperson’sexerciseofreligioneveniftheburden
results from a rule of law of general applicability” except “if it demonstrates that
the application of the burden to the person… (1) is essential to further a
compelling state interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” Rarely has Congress tried to reign in its own
powers, and that of other branches of government, to protect minorities. But, this
admirable goal could not pass constitutional scrutiny. In City of Boerne v. Flores
(1997) the Supreme Court overturned RFRA on the ground it violated the
separation of powers. Congress cannot dictate to the Supreme Court what theory
of law the Court must adopt in its jurisprudence.
These examples show the complexity of the intersection between law and
religion in our Constitutional democracy. This encyclopedia examines the issues
surrounding religion and American law. The questions are in part historical and
in part very modern. The entries cover a wide range of issues, events, and
people. Some deal with individuals who had a profound affect on the
development of religion and law, such as Roger Williams, James Madison, and a
number of Supreme Court justices. Other entries focus on certain faiths and sects,
particularly those that have often had confrontations with the American legal
system. There are also discussions of various legal theories and historical
developments of the law of church and state. The entries focus on the adoption
of the U.S. Constitution and the Bill of Rights and the way the people of the new
nation struggled to define the relationship between church and state. Finally,
there are entries of all the major legal decisions that touch on religions and
American law.
This book was possible only because of the hard work and patience of the
contributors. I began this project in 1990, while teaching a course in Church and
State at Brooklyn Law School. Colleagues there, and at Virginia Tech, Chicago-
Kent College of Law, Hamline Law School, and the University of Akron School
of Law encouraged the project and contributed to it. All of the contributors have
worked hard in this difficult collaborative enterprise. However, I owe special