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The Religion Clauses: The Case for Separating Church and State
Throughout American history, views on the proper relationship between the state and religion have been deeply divided. And, with recent changes in the composition of the Supreme Court, First Amendment law concerning religion is likely to change dramatically in the years ahead. In The Religion Clauses, Erwin Chemerinsky and Howard Gillman, two of America's leading constitutional scholars, begin by explaining how freedom of religion is enshrined in the First Amendment through two provisions. They defend a robust view of both clauses and work from the premise that that the establishment clause is best understood, in the words of Thomas Jefferson, as creating a wall separating church and state. After examining all the major approaches to the meaning of the Constitution's religion clauses, they contend that the best approaches are for the government to be strictly secular and for there to be no special exemptions for religious people from neutral and general laws that others must obey. In an America that is only becoming more diverse with respect to religion, this is not only the fairest approach, but the one most in tune with what the First Amendment actually prescribes. Both a pithy primer on the meaning of the religion clauses and a broad-ranging indictment of the Court's misinterpretation of them in recent years, The Religion Clauses shows how a separationist approach is most consistent with the concerns of the founders who drafted the Constitution and with the needs of a religiously pluralistic society in the 21st century.
234 pages, Kindle Edition
Published July 30, 2020
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Displaying 1 - 10 of 10 reviews
April 17, 2024
This was something
December 9, 2025
Chemerinsky and Gillman provide a broad overview of the primary issues relating to religion in American law—the scope of the Free Exercise Clause and the Establishment Clause of the First Amendment, in particular. I have mixed opinions on their views: they get the Establishment Clause mostly wrong, and the Free Exercise Clause mostly right. But no matter my broad agreements with the authors—especially as to the normative desirability of separation, although less so, but still to some degree, on whether that is mandated by the Constitution—they sometimes do not critically engage with the relevant issues.
Most of the contemporary debates on the relation between religion and government have Founding-era antecedents. What the Religion Clauses required was a matter of active debate, as it is today. Given these sharp disagreements, it is striking that the authors engage only minimally with the relation between the Religion Clauses and other provisions of the Constitution, which are less controversial and are less a matter of political debate today—for example, the First Amendment’s protection of free speech and the Fourteenth Amendment’s guarantees of equal protection. These provisions provide guidance to the meaning of the Religion Clauses, with the advantage of being disentangled from the minefield of disagreement constituted by the debate over religion in government, yet are absent from the book’s analysis with few exceptions (like a brief dismissal of concerns about compelled speech).
The Free Exercise Clause is not a dead letter, but in many concrete cases superseded by the Religious Freedom Restoration Act (or RFRA), which mandates the strict scrutiny approach the Supreme Court took before Employment Division v. Smith when religious beliefs may conflict with Federal laws. Yet the authors do not engage with RFRA in any meaningful sense: they put forward a theory of the Free Exercise Clause, defend it, but apply this standard, not the strict scrutiny one, to RFRA cases. Burwell v. Hobby Lobby Stores was decided on RFRA grounds, not on the basis of Free Exercise Clause claims—as it should, for it is not necessary to reach for the Constitution when answers can be found in statutes.
I understand the book is meant to be relatively short, but the quality and breadth of the analysis, exemplified by the above examples (which are only examples for a general lack of nuance), still disappoints.
Most of the contemporary debates on the relation between religion and government have Founding-era antecedents. What the Religion Clauses required was a matter of active debate, as it is today. Given these sharp disagreements, it is striking that the authors engage only minimally with the relation between the Religion Clauses and other provisions of the Constitution, which are less controversial and are less a matter of political debate today—for example, the First Amendment’s protection of free speech and the Fourteenth Amendment’s guarantees of equal protection. These provisions provide guidance to the meaning of the Religion Clauses, with the advantage of being disentangled from the minefield of disagreement constituted by the debate over religion in government, yet are absent from the book’s analysis with few exceptions (like a brief dismissal of concerns about compelled speech).
The Free Exercise Clause is not a dead letter, but in many concrete cases superseded by the Religious Freedom Restoration Act (or RFRA), which mandates the strict scrutiny approach the Supreme Court took before Employment Division v. Smith when religious beliefs may conflict with Federal laws. Yet the authors do not engage with RFRA in any meaningful sense: they put forward a theory of the Free Exercise Clause, defend it, but apply this standard, not the strict scrutiny one, to RFRA cases. Burwell v. Hobby Lobby Stores was decided on RFRA grounds, not on the basis of Free Exercise Clause claims—as it should, for it is not necessary to reach for the Constitution when answers can be found in statutes.
I understand the book is meant to be relatively short, but the quality and breadth of the analysis, exemplified by the above examples (which are only examples for a general lack of nuance), still disappoints.
April 24, 2023
Me gustó mucho la aproximación objetiva y analítica -especialmente caso por caso- de un tema tan espinoso. El libro analiza las "Religion Clauses" previstas en la 1ra Enmienda de la Constitución de E.E.U.U. (la "Establishment Clause" -el Congreso no podrá expedir ley alguna para el establecimiento de una religión- y la "Free Exercise of Religion Clause" -el Congreso no podrá expedir ley alguna para restringir la expresión religiosa-) desde su promulgación y repasa distintos casos que fueron llegando a la Corte Americana con variedad de contrastes, inclusive actuales (religión y objeción de consciencia-Burwell v. Hobby Lobby- o religión y derechos civiles -Masterpiece Cakeshop v. Colorado-). Soy fan y coincido con la conclusión: La secularidad en el gobierno es deseable (que no en la sociedad) y NO es sinónimo de hostilidad hacia la religión. No está mal el reconocimiento siempre que este sea neutral. Prohibir no es la solución. Tolerancia le llaman...
June 9, 2022
Important and helpful, the authors outline the 'judicial philosophies' used to support conflicting legal interpretations of church/state cases, then make their argument for a separation stance and briefly describe how that would play out - to the good of both civil government and religion, in their view.
Noteworthy - and either a strength or a blind spot - is that the book treats all these 'judicial philosophies' as sincere and the actual motivations for the interpretations.
In fact white supremacy, corporate greed and (selective) religious privilege have been entangled for many decades (ummmm ... can anyone seriously believe _Cruikshank_ was simply an application of a neutral constitutional analysis??) and in modern times is a (semi) open strategy.
Noteworthy - and either a strength or a blind spot - is that the book treats all these 'judicial philosophies' as sincere and the actual motivations for the interpretations.
In fact white supremacy, corporate greed and (selective) religious privilege have been entangled for many decades (ummmm ... can anyone seriously believe _Cruikshank_ was simply an application of a neutral constitutional analysis??) and in modern times is a (semi) open strategy.
February 17, 2021
The authors did a good job of making the case that government should remain separate when it comes to the establishment and exercise clauses of the first amendment. Of course, this has the effect of seeming like government is hostile to religion; however, civil laws are designed to protect and benefit all citizens and should be upheld even if they collide with a person’s religious beliefs. We don’t want our government to ever appear that it is favoring one religion over another. The framers of our constitution saw the dangers of that. The reason I only gave the book three stars is because some explanations were so long and drawn out that I would lose track of the point being made.
November 23, 2024
This book takes a pragmatic look on each of the religious clauses of the first amendment as noted in the title. It gives a very interesting constitutional look at the idea of separating the power’s under establishment clause as well as the free exercise clause, and then balancing different approaches that the courts have used overtime. I think this is a really good book for any student looking to understand. The first amendment as as well as any professor or teacher that is looking to get more information regarding these two clauses
March 10, 2023
Bennett: A terrific primer for anyone interested in the separation of church and state. The authors break down the "religion clauses" of the First Amendment, and explain how the Supreme Court has interpreted them over many years, and how it's being misinterpreted by the current court for very specific, activist purposes.
June 20, 2024
Had to read for a class. Didn't enjoy it very much. I understand more so now that this was their opinion on why church and state should be separated, but it still seemed very one sided.
January 1, 2025
A solid overview of different ways of interpreting the free exercise and establishment clauses of the Constitution written by a liberal constitutional scholar and political scientist. After providing an overview of how those clauses have been historically interpreted and situating the Supreme Court’s current trajectory, they make the case that the establishment clause should be interpreted as to create a “wall” between church and state (as opposed to an accommodationist view permits governmental expressions of religious belief); and that the free exercise clause should not grant exceptions to laws of general applicability (as opposed to applying strict scrutiny to laws that burden religious belief). Both of the positions that the authors argue for are the opposite of what the Court is doing, and indeed since this book has been published there have been a few major decisions that take the Religion Clauses in a stridently conservative direction with maximalist accommodation for government expression of religious beliefs and providing exception to general laws.
There are a few things that were either underbaked or puzzling. The authors go out of their way to say that they do not support an originalist interpretation of the constitution, but for the Religion Clause they think it’s important to situate their meaning in how the drafters and founders understood them. They don’t really justify this switch up, other than saying religion is different, which felt intellectually lazy and insincere. For example, if you’re going to be a proponent of interpreting the constitution in a living, expanding tradition, that could mean that this current iteration of the Court’s jurisprudence is just a natural extension of that approach to constitutional interpretation. There are some clear counterarguments to that — such as these recent Court decisions breaking significantly from the court’s path of jurisprudence rather than being an outgrowth of them, and that those decisions themselves don’t employ living traditionalist reasoning — but the authors just don’t engage with it. Just felt like a “trust us bro, this is different” which is to their detriment.
Also, one of the arguments that the authors gave for a wall between church and state is to protect how welcome other religious traditions feel in this country. I had to laugh, as if the 21st century has not been defined by wars that could only be justified by demonizing Muslims and painting Islam as this vile tradition that needs to be reformed to create a nice, neat little “moderate Islam.” As if the current genocide in Palestine isn’t an outgrowth of the anti-terrorism laws (first passed to target Palestinians!) that have gone on to pave the way for the War on Terror. As if members of the government are always spewing Islamophobic sentiments, Muslims haven’t been mass surveilled. As if Black liberatory religious movements, whether Christian or Muslim, haven’t been viciously suppressed. A complete failure to engage with how the government demonizes and suppresses religious belief and communities in the name of national security made me take this book a lot less seriously. I am sympathetic to the fact that providing a history of religious discrimination by the government was not the aim of this book. However, at other times the book does dive into history, and not only when talking about the founders beliefs on the separation of church and state. The history of conservative Christians allying with the Republican party in the 70s is given a few pages, as are other examples of religious discrimination by the government to show that the government intertwining itself with religion is necessarily a bad thing. So to be selective about what types of government intertwinement or what types of political movements that have used religion to bolster their cause to write about, and then completely omit how harmful this has been in our current age was frustrating.
This type of formalism is normal in constitutional law, and law in general, so it wasn’t necessarily surprising: the Religion Clauses are supposed to serve a specific purpose, and to hold them to account for something they’re not designed for is not always a good argument. But this book also gives the impression that anything that touches the intersection of government and religion should implicate one of these clauses, and that is simply not the case. To not acknowledge that or engage with it was disappointing and made the book feel incomplete and significantly less useful/effective . It’s an of example of how you can pen these nice words, wax poetic about the law and its proper jurisprudence, and in the background the killing machine will dutifully march forward.
There are a few things that were either underbaked or puzzling. The authors go out of their way to say that they do not support an originalist interpretation of the constitution, but for the Religion Clause they think it’s important to situate their meaning in how the drafters and founders understood them. They don’t really justify this switch up, other than saying religion is different, which felt intellectually lazy and insincere. For example, if you’re going to be a proponent of interpreting the constitution in a living, expanding tradition, that could mean that this current iteration of the Court’s jurisprudence is just a natural extension of that approach to constitutional interpretation. There are some clear counterarguments to that — such as these recent Court decisions breaking significantly from the court’s path of jurisprudence rather than being an outgrowth of them, and that those decisions themselves don’t employ living traditionalist reasoning — but the authors just don’t engage with it. Just felt like a “trust us bro, this is different” which is to their detriment.
Also, one of the arguments that the authors gave for a wall between church and state is to protect how welcome other religious traditions feel in this country. I had to laugh, as if the 21st century has not been defined by wars that could only be justified by demonizing Muslims and painting Islam as this vile tradition that needs to be reformed to create a nice, neat little “moderate Islam.” As if the current genocide in Palestine isn’t an outgrowth of the anti-terrorism laws (first passed to target Palestinians!) that have gone on to pave the way for the War on Terror. As if members of the government are always spewing Islamophobic sentiments, Muslims haven’t been mass surveilled. As if Black liberatory religious movements, whether Christian or Muslim, haven’t been viciously suppressed. A complete failure to engage with how the government demonizes and suppresses religious belief and communities in the name of national security made me take this book a lot less seriously. I am sympathetic to the fact that providing a history of religious discrimination by the government was not the aim of this book. However, at other times the book does dive into history, and not only when talking about the founders beliefs on the separation of church and state. The history of conservative Christians allying with the Republican party in the 70s is given a few pages, as are other examples of religious discrimination by the government to show that the government intertwining itself with religion is necessarily a bad thing. So to be selective about what types of government intertwinement or what types of political movements that have used religion to bolster their cause to write about, and then completely omit how harmful this has been in our current age was frustrating.
This type of formalism is normal in constitutional law, and law in general, so it wasn’t necessarily surprising: the Religion Clauses are supposed to serve a specific purpose, and to hold them to account for something they’re not designed for is not always a good argument. But this book also gives the impression that anything that touches the intersection of government and religion should implicate one of these clauses, and that is simply not the case. To not acknowledge that or engage with it was disappointing and made the book feel incomplete and significantly less useful/effective . It’s an of example of how you can pen these nice words, wax poetic about the law and its proper jurisprudence, and in the background the killing machine will dutifully march forward.
March 10, 2023
A terrific primer for anyone interested in the separation of church and state. The authors break down the "religion clauses" of the First Amendment, and explain how the Supreme Court has interpreted them over many years, and how it's being misinterpreted by the current court for very specific, activist purposes. The breakdown of that wall should be of concern to people of faith and secularists as well: the establishment and free exercises clauses are presumably designed to keep the government out of the religion business, to the benefit of everyone. But for such an important topic - ostensibly the reason for our break with England - the framers are quite vague in their language, creating more confusion than instruction. Thus the many interpretations. If only Jefferson had put into the amendment his latter words, “...thus building a wall of separation between Church and State.” But neither he nor James Madison felt compelled to give the matter more than a cursory mention amidst freedoms of assembly, speech and the addressing of grievances. This issue may never be resolved, only toggle between SCOTUS eras. But if the Court's justices are to be intellectually honest, they would read the Madison's intent, which Gillman and Chemerinsky conclude with: "I have no doubt that every new example, will succeed, as every past one has, in shewing (sic) that religion & Govt. will both exist in greater purity, the less they are mixed together."
Displaying 1 - 10 of 10 reviews