Wrestling with God: The Courts’ Tortuous Treatment of Religion by Patrick M. Garry (review)

Book Reviews WRESTLING WITH GOD: THE COURTS’ TORTUOUS TREATMENT OF RELIGION by Patrick M. Garry, The Catholic University of America Press, 2006, pp. 1–230. In Wrestling With God Professor Patrick Garry (University of South Dakota) reviews some of the principal Supreme Court cases regarding religion. He highlights inconsistencies in the various “tests” the Court has developed, and the incoherence of Supreme Court doctrine regarding religion acknowledged by most commentators. He, in fact, suggests that the Court has turned the First Amendment against religion in some respects . He dates the beginning of this development to Hugo Black’s citation of Thomas Jefferson‘s “wall of separation” metaphor in Everson v. Board of Education (1947), which led to a jurisprudence of “strict separation ,” and eventually the Lemon test (enunciated in Lemon v. Kurtzman in 1971). Treatment of religion by the Supreme Court in the twentieth century did not actually begin with the religion clauses, but with free speech doctrine . A number of cases involving street preaching and door-to-door canvassing by Jehovah’s Witnesses were decided in the 1930’s and 40’s based on the general freedom of Witnesses to express their views, rather than the fact that the views being expressed were religious and therefore an “exercise” of religion. The Court avoided “free exercise” issues by focusing its attention on freedom of expression in general. Given this background , and the development of free speech law in other areas, Garry points to disparities in the way the Court has treated speech and religion, with greater protection for what is characterized as free speech than what is considered the free exercise of religion. However, Garry (like others) attributes great significance to the fact that religion is the first freedom mentioned in the Bill of Rights, indicating a certain priority in the constitutional scheme, which makes any disparity of treatment with other fundamental rights even more surprising. The Supreme Court has decided more cases under the Establishment Clause than the Free Exercise clause. Garry asserts that Establishment clause rulings are inconsistent and have resulted in a confused jurisprudence . Few would disagree. He suggests that in focusing on Establishment Clause jurisprudence the Court has failed to develop a coherent The Jurist 68 (2008) 298–313 298 Free Exercise doctrine. His point is well taken when he asserts that the two religion clauses were always intended to work together, not against one another. The Supreme Court has consistently agreed with this in theory , but its rulings sometimes seem to view the clauses as conflicting with one another. On the other hand, it must be said that it is perhaps simply more difficult to decide what must be permitted as free exercise than to identify what should be prohibited as an establishment of religion. Be that as it may, Garry reviews the pronouncements of the Court on religion and critiques what he feels are their many deficiencies. He then offers his own interpretation of the history of the First Amendment and the government’s treatment of religion, which serves as background for his arguments that a greater involvement of government with and in support of religion, is possible in the United States based upon his reading of history and what it reveals about “the original intent of the framers.” When all is said and done, Garry proposes that the government can show “non-preferential favoritism” toward religion (favoring religion in general , though not any specific religion). How this could be carried out, give the wide diversity of religions in the United States today, he does not say; and one has to at least suspect that when Garry says “religion” he really means “Christianity,” if not one particular version of Christianity. Professor Garry’s interpretation of the history of the FirstAmendment and his constitutional arguments are definitely outside the mainstream. For instance, relying on a book by Daniel Dreisbach, he argues that Thomas Jefferson’s idea of separation “ was based in part on the principle of federalism, not on a belief that the establishment clause set up a rigid separation between religion and government.” It is hard to square this assertion with Jefferson’s authorship of the Virginia Statute for Religious Liberty and the kind...