Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution

Sarah Barringer-Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Belknap/Harvard University Press: Cambridge, 2010) pp. 316

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (Harvard University Press: Cambridge, 2010, Paperback) pp. 352

Everson v. Board of Education is one of the most important and well-known Supreme Court cases for two reasons. First, it finally incorporated the Establishment Clause to apply to both the states as well as the federal government and second, it ushered in Thomas Jefferson’s “wall of separation” metaphor into the jurisprudence of the Religion Clauses. Both of these developments are at the heart of the two books we have under consideration.

Sarah Gordon’s engaging new book, The Spirit of the Law, takes a look at the flesh-and-blood stories surrounding some of the cases that flooded the Supreme Court in the post-Everson period, or what the author calls the “new constitutional world.” Through five distinct but interwoven histories of people and groups which have shaped the ever-fluid contours of the constitutional law of religion, we are invited to view the present constitutional world through the struggles of those who fought to have the law protect the mandates of their respective faiths. These stories would not have been possible without the collapse of the old regime that was largely powered by state law.

As Gordon describes in the first few pages, there are three distinct constitutional landscapes in American history that is more or less reflected in the trajectory of the nation’s religious history. The first period covers the Founding up to more or less the middle of the nineteenth century while the second period covers mostly the period after the last state disestablishment up to the promulgation of Everson. Gordon situates the stories of the Mormons, the Salvation Army and the Jehovah’s Witnesses during this second period. Interestingly, this long nineteenth century also saw the rise of a moral establishment where, despite the earlier state disestablishments, laws and other social reform measures were undergirded by the notion that Christianity formed part of common law. State attempts to enforce their monopoly on adjudicating religious issues were met by the persistence and creativity of believers who sought to bring to life the promise of liberty embedded in the Religion Clauses.

The common thread running throughout the essays in this book was the turn to law of each of these four groups: the Jehovah’s Witnesses, the Protestants and Other Americans United for the Separation of Church and State (POAU), the Nation of Islam, the Concerned Women for America (CWA) and the Religious Coalition for the Freedom to Marry (RCFM). It is important to note that the legal turn was also a spiritual turn for the people behind these groups. Out of their own religious faith, they all clung to a deeply-held conviction that the Constitution guaranteed a place for them and their beliefs in American society.

Gordon uses lucid prose to illuminate the struggles that the people behind these groups encountered along the way, shedding light on little known stories such as those of Hayden Covington and the Witnesses, Wallace Fard Mohammed and the Nation of Islam and Beverly LaHaye and the CWA. While it is not entirely clear to the reader why she has chosen to focus on these groups and not others, she does an excellent job presenting their respective dilemmas as they turned to courts for relief. Each can be read as a standalone essay but can also be read together as an entire narrative. As Gordon herself notes in an earlier book review, much of American religious history has been unfolding in courtrooms. This book is a glove thrown down as a challenge to those whose beliefs run against the grain of convention to step up and argue that the law of religious liberty protects their beliefs too.

Of course, the stories are never far, if embedded, from the culture wars that engulfed, and perhaps still continue to engulf the broader American society today. The POAU fought against what they felt was a sinister encroachment of the Roman Catholic Church into public schools and their claims for federal funding during the Protestant-Catholic wars in the 50s and 60s. CWA continued a version of that battle with secular humanism especially in schools as the enemy this time. The fruits of the efforts of RCFM continue to reverberate today as the issue of same-sex marriage still rages on in many states. The importance of marriage, as Gordon puts it succinctly, is that it is able “to unite religious and legal meaning in the lives of individual men and women, as well as in broader society.” As several states still ponder this question, the story behind RCFM’s advocacy that resulted in the Goodridge victory, allowing same-sex unions in Massachusetts, could serve as a helpful guide for both its progressive advocates and conservative foes elsewhere.

The problem however is that the law of religion is almost like a moving target, always far from being settled. It is within this landscape, one that has been shaped and is in turn shaping the likes of these four groups through the legal strategies they pursue, that we find the incoherent world of American Religion Clause jurisprudence.

Eisgruber and Sager’s book is a contribution to the continuing quest to make sense of the animating principles behind the Religion Clauses, and thereby offer coherent standards for deciding cases. More precisely, they advance a theory that strikes at the heart of the Jeffersonian wall metaphor that Everson introduced into the world. Eisgruber and Sager offers the ethical, as opposed to the historical, view that the essence of religious freedom is one of antidiscrimination, calling their theory Equal Liberty. According to this view, the Religion Clauses should be animated by concerns of fairness that will allow people of various religious persuasions to be able to live together. Thus we should treat religious freedom like all other freedoms guaranteed by the Constitution. Following the path paved by the prevailing separation metaphor, they argue, is fraught with convolutions, “a surefire recipe for inconsistency.” There must be something wrong when we treat religion as special in matters of free exercise claims, but we discriminate against it in establishment cases.

The tidiness and simplicity of application offered by Equal Liberty is tempting for anybody trying to grapple with the unwieldy case law of the religion clauses. But ultimately it is as problematic as the separationist framework it tries to dislodge. Eisgruber and Sager does not give religion its distinct place in the Constitution. As a result, it suffers from no special burdens but it does not get special exemptions either.

As this book has been originally published four years ago (this is the paperback release) and thus has garnered already a number of reviews, I will just focus on one aspect where I think the proposal encounters trouble. Eisgruber and Sager, for instance, allow government funding of religious education through voucher programs but only if there is a secular alternative available to the parents. Framed this way, religious schools are already at a disadvantage from the start. Equal Liberty does not support religious schools outright for constitutional reasons and at the same time requires a secular alternative. Anticipating this objection, the authors acknowledges that secularity is the baseline because “secular institutions and principles are self-consciously incomplete” and is thus more inclusive of various beliefs while religious schools involve comprehensive views that “function to mark believers as insiders and nonbelievers as outsiders.” This is perhaps a matter of interpretative choice. Religious believers can also view secular education as woefully insufficient to what they believe as the proper upbringing for their children.

In the end, however, this book is a provocative, if extended treatment of an idea that is meant to introduce workable standards for Religion Clause jurisprudence. It is certainly worthwhile to consider along with other theories.

Zooming out from within the doctrinal world, the world of technical constitutionalism as Sarah Gordon has described it, we go back again to the world of popular constitutionalism. Everson put law at the center of the battles between and amongst believers. And inasmuch as the incoherent mess that is the Religion Clause jurisprudence is proof that constitutional law has become the tool of choice for believers, this incoherent mess also determined the course of action or the sort of legal strategies that believers employed in support of their cause. Gordon, for instance, credits the Supreme Court prayer decisions in the 1960s as the driving force behind the opposition to secularism. From this movement arose the likes of conservative Protestants like Tim LaHaye, a pastor of one of the megachurches in San Diego, and his wife Beverly LaHaye, one of the leaders of the CWA.

The most important takeaway from this book is what Gordon writes in her Epilogue, namely that this turn to constitutional law, even if it can be frustrating for many at times, is somehow responsible for the toleration that exists in American society today. It creates unlikely partnerships and forces people to talk and put their beliefs out in the open, often dressed in constitutional language. The stories in the Spirit of the Law is an informative and engaging picture of believers and what they make of this legacy of religious liberty that the Founding Fathers have left us, even as the legal boundaries between religion and government continue to remain uncertain.

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Anna Su is a currently an SJD candidate at Harvard Law School.

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