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Religion and the Constitution: Volume 2: Establishment and Fairness [Paperback]

Kent Greenawalt

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Book Description

July 26 2009 Religion and the Constitution

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should students in public schools be allowed to organize devotional Bible readings and prayers on school property? Does reciting "under God" in the Pledge of Allegiance establish a preferred religion? What does the Constitution have to say about displays of religious symbols and messages on public property? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.

In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.

Calling throughout for acknowledgment of the way religion gives meaning to people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.

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"[S]tudents, law clerks, scholars, and interested citizens seeking a fair-minded dissection of the complexities of any given issue can easily dip into the two volumes and find much of value. In particular, Greenawalt's chapter on 'Establishment Clause Tests and Standards' provides as succinct an introduction to the twists of case law as currently available."--Aziz Huq, New York Law Journal

"The comprehensiveness of Greenawalt's treatment makes for a book that, though more than a conventional treatise, should be valuable for use in the way treatises are employed. This is not the sort of book that many readers will want to sit down and read cover-to-cover. But for a careful, fair-minded analysis of the cases and arguments with respect to virtually any establishment controversy that a judge or scholar may be investigating, one could hardly do better than to consult Greenawalt's treatment. And his relevant chapters ought to be mandatory reading for any student who wants to write a seminar paper or law review comment on a religion clause topic."--Steven D. Smith, Harvard Law Review

"Greenawalt's approach illuminates a range of issues in political theory. It will be especially useful for theorists interested in questions relating to identity, culture, and religion."--Alan Patten, Perspectives on Politics

"Justice: Rights and Wrongs is a major contribution to political and legal theory. A short review cannot give more than a taste of the breadth, rigour and sophistication of the arguments. It is certainly worthy of our respect and deserves to be widely read and debated."--Ian Leigh, Ecclesiastical Law Journal

From the Inside Flap

"The book takes within its gaze an astonishingly rich set of cases, problems, contexts, and variations, reaching well beyond the narrow domain of judicially enforceable constitutional principle to questions of public policy and private behavior."--Larry Sager, University of Texas

"Kent Greenawalt is a national treasure. He combines an encyclopedic knowledge of the law with a subtle understanding of the human dimensions of each of the wide range of problems that arise with respect to free exercise rights. This will immediately become the best book in print on the problems presented by religious accommodation."--Andrew Koppelman, Northwestern University

--This text refers to the Hardcover edition.

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Front Cover | Copyright | Table of Contents | Excerpt | Index
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4 of 5 people found the following review helpful
3.0 out of 5 stars Highly informative April 8 2011
By A. Nye - Published on
Kent Greenawalt is undoubtedly a brilliant Professor at Columbia Law School and he's written a thought-provoking book on the free exercise of religion that unfortunately, no one will read. I shouldn't say that no one will read it - I'm sure that law school students (especially those in Professor Greenawalt's classes), judges and the fairly limited number of lawyers who routinely practice in this area will read Religion and the Constitution.

One of the reasons this book will not be widely read is that the subject matter, while interesting, is just so difficult to wrap your head around. The first clues that I had that this would be a tough read was when I opened the book and noticed that the Introduction by the author contained 11 fairly detailed footnotes. Oh-oh.

Admittedly, it's been a long time since I was in law school. But reading this paragraph from the introduction made my head throb as memories of those classes in Constitutional Law came back to me:

Many situations in which multiple values are at stake involve difficult trade-offs that are not resolvable by any higher metric that gives much practical assistance. This truth has implications for the coherence we can expect in normative evaluation. Two people sharing the same theoretical approach may disagree about how to resolve a particular problem, and each may have difficulty explaining the exact weighting of relevant considerations that leads her to prefer the outcome she does. Someone who conceives such nuances of difference in normative appraisal will be modest about the opportunities for our practical reason to produce demonstrably correct conclusions for troublesome issues. Recognizing that the majority opinions of American courts often suffer the further liability of being produced by various compromises, such a person will hesitate to condemn judicial work as incoherent or irrational, a charge frequently leveled against the Supreme Court's church-state jurisprudence.

For those for whom this book is directed, it's thoroughly researched and wonderfully informative. Greenawalt begins by sketching out the history of the Free Exercise Clause in the Constitution, its subsequent development, and a brief history of leading Supreme Court decisions. Along the way, he succinctly explains the difference between "originalists" and "nonoriginalists" judges who must determine the meaning constitutional texts. He then allocates a chapter to each of the main religious controversies often confronting judges in today's courts.

Soon, you too will understand how the law answers many vexing religious questions, such as:

Should the government excuse religious pacifists, all pacifists, or no pacifists from a military draft? Given a general requirement that children stay in school up to the age of sixteen, should officials allow a religious group to withdraw their children at an earlier age, so they may undertake vocational training for their communal life? Should a state that prohibits use of peyote allow members of a church to ingest that drug as the center of their worship services? Should a law that forbids gender discrimination in employment leave untouched religious groups that permit only men to be clergy?

These and many other controversial issues involving religion claims and standard legal duties are examined in this scholarly text. If you practice in this area of the law, this book is invaluable.

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