The Law of Organized Religions: Between Establishment and Secularism by Julian Rivers, and: The Agnostic Age: Law, Religion and the Constitution by Paul Horwitz (review)

In a general sense the two books reviewed here consider the same contemporary issue; that is, the regulation of religion in today’s increasingly religiously diverse constitutional democracies. Should religion continue to get special treatment under law? What might special treatment mean? What counts as religion for law? Yet, to read them is to encounter two very different sets of presuppostions and preoccupations. Horwitz is concerned to return law to an engagement with the truth claims of religions. He thinks US courts should understand and treat religious truth more respectfully than they do now. Rivers, on the other hand, announces early on that English law has properly moved away from a concern with truth: ‘One simple way of characterizing the changing law of Church and State is as a slow transition from the maintenance of one true religion to the principle that there is, in law, no false religion’ (24). Rivers suggests that English law can manage perfectly well without inquiring into the validity or value of particular religious ideas and practices. Horwitz is worried that neutrality leads to indifference or contempt.

While the United States and the United Kingdom share a largely common legal history and have roughly similar religious populations today and, of course, share a couple of hundred years of common religious history, these two books help to dramatize their very different legal and constitutional approaches when it comes to religion; they highlight the still local nature of the law in this area. As Julian Rivers, who also clearly believes that much is at stake and that the particular English arrangement is founded in important constitutional principles, says, in the end, ‘the relationship between law and religion in any country is a reflection of historical contingencies, controversies and compromises’ (1).

Setting these two books next to each other, then, books about two countries whose people and politicians are often described as enjoying a special affinity, illuminates both. Rivers offers a carefully comprehensive account of the law of church and state in England across time. One sees in his history the development and interaction of institutions that are identifiable and recognizable. The monarch and Parliament, on the one hand, the Church of England, and then, gradually, the dissenting churches, the Catholic Church, the Jewish community, and eventually many new immigrant traditions, on the other (but these others almost always by analogy with or in relation to the Anglican church). Both religion and state are visible. You know where to find them in England. They may have been at odds at various times, but you know who the players are. Turning to the United States, we see a very different picture. In the United States, neither church nor state is really present as a bounded institutional character either historically or today – certainly not at the federal level – in the management of religion. The US Constitution is understood to create a free market in religion, one that allows the individual – and to some extent the group – freedom of choice, unregulated by law. Neither the church nor the state is in charge. They are understood to be separate and to be kept apart – apart from each other and prevented from imposing their will on the people. At least, in theory.

Paul Horwitz agrees that they should be kept apart, but he wants judges and lawyers in the United States to take religion seriously. He takes as a given that the evident persistence of religion, the stubborn facts of pluralism, and the collapse of the liberal consensus together demand a new approach to the interpretation of the religion clauses of the First Amendment to the US Constitution. What he calls the old neutrality, a neutrality which attempted to bracket religious truth, simply no longer corresponds to what he calls the new agnosticism. The implication is that Americans...