Religious Freedom and the Supreme Court
by Ronald B. Flowers, Melissa Rogers, and Steven K. Green
Baylor, 1200 pages, $69.95 paper
Justice Clarence Thomas has observed that the Supreme Court’s decisions and doctrine having to do with religious freedom, church–state relations, and “religion in the public square” are in “hopeless disarray.” What accounts for this mess?
The causes, no doubt, are many: For example, the Court attached itself at the outset, in its 1947 Everson decision, to Justice Hugo Black’s superficial and selective account of the religion clause’s history and purposes. And, as the late Chief Justice William H. Rehnquist noted, “It is impossible to build sound doctrine upon a mistaken understanding of constitutional history.”
In addition, it seems clear that those who wrote and ratified the Bill of Rights were less sensitive than contemporary commentators to the injuries that public religion allegedly inflicts on outsiders and dissenters, and more likely to perceive a connection between political freedom and the common good, on the one hand, and religion and its exercise, on the other.
The Court’s frustrating reluctance, in recent decades, to either leave the delicate civil-religion balance to politically accountable actors or decide cases without reference to the justices’ own perceptions of “divisiveness” or “endorsement” is yet another possible cause.
In any event, the retirement from the Court of one justice and the nomination and confirmation of another bring with them, again, the possibility that the “disarray” might not, with a little effort, be entirely “hopeless.” While the student or citizen waits for the Court to clean things up, though, he will do well, in the meantime, to exploit the helpful resource that is Religious Freedom and the Supreme Court.
This volume is a reworking of Toward Benevolent Neutrality, a respected church–state textbook by Prof. Flowers and Robert Miller, to whom the new volume is dedicated. The volume is hefty and comprehensive but also straightforward, accessible, and well organized. Several introductory chapters on the Court and its work, the historical background of the First Amendment and the American experiment in religious freedom, and a few of the leading themes help to put the (mercifully) heavily edited excerpts of the Court’s opinions in context. Perceptive study questions point the reader toward both open questions and animating premises. The authors’ own views, even when evident, are not imposed or displayed heavy-handedly. Although the book is best regarded more as a presentation of the Supreme Court’s religious-freedom work than as a direct study of the questions underlying that work—the work of constitutional scholars, for example, is for the most part only referenced, not engaged—it is, nonetheless, recommended.