Title: The Religion Clauses: The Case for Separating Church and State
Authors: Erwin Chemerinsky & Howard Gillman
Publisher: Oxford University Press
Published: 1 September 2020
Summary: Throughout American history, views on the relationship between the state and religion have been deeply divided. With recent changes in the composition of the Supreme Court, First Amendment law concerning religion is likely to change in the years ahead.
As this is a non-fiction book, I am setting up the review differently than a fictional book. With non-fiction books, I think having background information on the authors, along with other information is helpful to understanding my own thoughts on this book and why I would (or would not) recommend it.
Erin Chemerinsky is one of America’s leading constitutional scholars. He received a bachelor’s degree in communications from Northwestern University (1975), after, he attended Harvard Law School where he graduated cum laude in 1978. He taught for over 20 years at the University of Southern California Law School and at DePaul University College of Law. He went on to work at Duke University in 2004, then to UC Irvine in 2008. In 2017, he started his five-year term as dean of the UC Berkeley School of Law. Chemerinsky has published 6 books, numerous articles, and a regular column on the United States Supreme Court carried by California Lawyer, the Los Angeles Daily Journal, and Trial Magazine. Chemerinsky has also argued several cases before the U.S. Supreme Court, including United States v. Apel, Scheidler v. NOW, Tory v. Cochran, Van Orden v. Perry, and Lockyer v. Andrade.
Brief overview of Chemerinsky’s legal thought:
- Supports gun control
- Supports Roe v. Wade decision
- Supports gay marriage
- Supports affirmative action
Howard Gillman is also one of America’s leading constitutional scholars. He received a bachelor’s degree in Political Science (magna cum laude, 1980), a master’s degree in Political Science in 1981, and a Ph.D. in (you guessed it) Political Science in 1988. He has been a professor at UCLA, California State University, and University of Southern California. Gillman has been serving as the Chancellor of the University of California since 2014. He has published 8 books, along with writing numerous articles and book chapters.
Brief overview of Gillman’s academic fields of specialization:
- Constitutional law, history, theory, politics
- Supreme Court politics
- American political development
- Judicial politics
- Law and society
The book is set up in a logical and detailed format. They begin with an overview of the history and how freedom of religion is enshrined in the First Amendment through two provisions. They defend a robust view of both clauses in the preface, and chapters 1 and 2 and work from the premise that the establishment clause is best understood, in the words of Thomas Jefferson, as creating a wall of separation between church and state. (He’s still deplorable for his treatment of slaves and owning slaves and Sally Hennings but good job with this one line). After examining all approaches detailed in chapters 3 and 4, they find that the best approach for the government is to be strictly secular and for there to be no exemptions for religious people from neutral and general laws that others must obey. They end with how America should go forward, as well as defending why separation is not hostile to religion.
Okay…this book is dense. I’m not going to lie, and I have a degree in political science. The writing was well done and understandable, the dense part was the information itself, as it is an important topic to understand and it’s not as clear-cut as some people would like to believe. They did an amazing job of looking at the history of the free exercise and establishment clauses. Due to the European countries, many people were fleeing from that were intolerant of religious diversity, the Framers of the constitution didn’t want to have a country that didn’t link government to one religion or religious denomination. The two main chapters are chapters 3 and 4.
Chapter 3 covers “The Establishment Clause: In Defense of Separating Church and State,” where they defend the idea that government and the church should be strictly separate. The establishment clause deals with the government not establishing one religion or favoring one religion over another. Some of the cases covered are Allegheny County v. Greater Pittsburgh ACLU, American Legion v. American Humanist Association, and Town of Greece v. Galloway among others. They do delve into the problem of relying on history to provide answers, as looking towards the Founding Fathers to figure out if providing computers to parochial schools is unconstitutional under the establishment clause is silly at best and meaningless at worst.
Chapter 4 covers “The Free Exercise of Religion: Guarding against Religious Animus but Defending Neutral Laws of General Applicability,” where they defend that the Free Exercise Clause is best understood as “prohibiting government action that is motivated by animus towards particular religions or religious practitioners, or that targets religious beliefs, institutions, and practices” (97). The cases covered in this chapter pertained to protecting religious belief but not conduct (Reynolds v. United States); strict scrutiny of laws burdening religious freedom (Braunfeld v. Brown); or jobs (Employment Devision v. Smith).
The entire book provides explicit detail into the cases they cover. They go into depth in the chapters, so much so that at points it does seem repetitive. There is a part in chapters 3 and 4 that covers “Applications” of each theory of approach for each clause. This part is where they went over the cases again in slightly different detail or lens. The last chapter (Chapter 5) also repeated some of the detail from the cases mentioned before.
One of my favorite parts and one that I think is the most important aspect of this book is this quote they use from James Madison:
“I have no doubt that every new example, will succeed, as every past one has done, in shewing [sic] that religion & Govt. will both exist in greater purity, the less they are mixed together.”186
I fully believe in what Chemerinsky and Gillman are arguing for here. I am of the belief that the mixture of government and religion only corrupts both government and religion.