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  • The Myth of American Religious Freedom
  • Mark Tushnet
The Myth of American Religious Freedom. By David Sehat (New York, Oxford University Press, 2011) 356 pp. $29.95

The Myth of American Religious Freedom is a thought-provoking work that readers must approach with some caution because of a pervasive conceptual confusion about the requisites of religious freedom. Sehat opens with a description of Charles Reynolds' trial for blasphemy in 1886, a straightforward example of government coercion employed against a religious dissenter. Most of Sehat's book concerns a different phenomenon, the role of what he calls the "moral establishment" in U.S. law. Sehat offers an overview of U.S. public policy seen through the lens of religious motivation, from the adoption of the First Amendment through nineteenth-century controversies about anti-slavery, Mormonism, and the public schools to the contemporary resurgence of fundamentalist and evangelical involvement in national politics. Throughout, Sehat emphasizes how public policies developed because their supporters were motivated by religious belief, usually mainline Protestant Christianity.

The moral establishment has two components that should be separated carefully. In a summary, Sehat refers to "the moral establishment's reliance upon legal coercion to propagate religiously derived moral norms" (290).We should distinguish, however, between coercion based on religion as such—illustrated by blasphemy prosecutions and the persecution of Mormons and free-thinkers that Sehat discusses—and coercion based on norms derived from religion. Much law falls into the latter category, as Sehat's treatment of the religiously motivated elements of the anti-slavery and women's suffrage movements shows.

Public policy based on religiously motivated norms can sometimes be problematical. Even without coercion, it can sometimes lead "to an [End Page 474] unfair exclusion" of religious minorities (250). It can have a disparate impact, "with Protestant Christianity quite clearly receiving preferential support from the government" (285), although it is unclear what the nature of the preferences has been other than agreement with moral norms consistent with Protestant Christianity. But these are not inevitable effects of policies motivated by religiously derived norms.

Sehat criticizes the main strand of religion-clause doctrine, starting with Stephen Field's analysis in Davis v. Beason (1890) and extending to the present, which "accept[ed] that legislation could not speciªcally promote religion, . . . [but ] upheld legislation if it had any conceivable civil end, even if that civil end was rooted in religious concerns" (170). Philosophers and legal scholars have struggled without much success to come up with a satisfactory alternative. Much entirely uncontroversial legislation draws support from voters and representatives who believe that the legislation is consistent with, or even required by, their religious commitments. The moral pluralism that Sehat recommends would seem to support a moral establishment produced by such mechanisms. Yet a great deal of what he criticizes ªts that description.

Sehat departs from a scholarly tone in his repeated references to the "myth" of liberty and, more egregiously as he approaches the present, in his use of terms like "duplicity" to describe judges' arguments that lie somewhere between complex and confused (for example, 273). Some of Sehat's discussions of constitutional law, such as his treatment of Felix Frankfurter's position in the ºag-salute cases and of Antonin Scalia's in the peyote case (224-226, 277-278), are weakened by his singular focus on religious liberty, which fails to take into account how broader controversies about judges' roles affected religion-related cases. Yet, with all of its defects, the book offers a provocative perspective on the interactions between religion and public policy in U.S. history. Sehat's telescope needs a slight twist to bring the story into clear focus. Even with its arguments somewhat blurry, however, his book is worth pondering.

Mark Tushnet
Harvard Law School


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pp. 474-475
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