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Religion and American Law PDF

881 Pages·2008·4.35 MB·English
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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

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