God vs. the Gavel: Religion and the Rule of Law

by Marci A. Hamilton, Edward R. Becker (Foreword)

God vs. the Gavel challenges the pervasive assumption that all religious conduct deserves constitutional protection. While religious conduct provides many benefits to society, it is not always benign. The thesis of the book is that anyone who harms another person should be governed by the laws that govern everyone else - and truth be told, religion is capable of great harm. This may not sound like a radical proposition, but it has been under assault since the 1960s. The majority of academics and many religious organizations would construct a fortress around religious conduct that would make it extremely difficult to prosecute child abuse by clergy, medical neglect of children by faith-healers, and other socially unacceptable behaviors. This book intends to change the course of the public debate over religion by bringing to the public's attention the tactics of religious entities to avoid the law and therefore harm others.

Genres: Nonfiction, Law, Religion, Politics

409 pages, Kindle Edition

First published September 28, 2005

Reviews

[Michael Stern · Rating 4 out of 5]

While our scientists are on the verge of unlocking the secret to curing many serious diseases by means of insights gathered from stem cell research, there are some among us who would sacrifice the lives and well-being of the beneficiaries of such research at the altar of conformance to archaic sectarian dogma. And if that sounds rather uncompassionate, consider the truly hideous cases where some of these self-proclaimed keepers of "family values" actually perpetuate abuse. Yet when the civil authorities attempt to bring such perpetrators to justice, the religious authorities simply circle the wagons and deny culpability.

Marci Hamilton's book exposes the special protections that the religious institutions and particular religious officials enjoy when it comes to both the criminal justice system, as well as civil law. Now that this information has been concisely presented for everyone to examine in this groundbreaking volume, it's time for all of us to demand that religion stop being used as a cover for negligent and criminal activity.

[Dallas Koehn · Rating 2 out of 5]

“The legal issue is not whether the religious viewpoint of certain believers is internally inconsistent, or even what any one group believers holds true. The question for public policy is whether {a given practice} is consistent with what is best for society, period. {Many} public officials and representatives {confuse} a debate over belief with the debate over public policy. Both debates are welcome at the public roundtable. Only the latter property shapes the law. The government may not enter the former, but it is duty-bound to address the latter.”

This is Hamilton’s approach to all things church-state, as she drives home repeatedly. She’s clearly well-informed (she argued several of these cases in various federal courts, including the big one, after all) and no doubt an authority. At times, however, it’s difficult to know precisely what she wants us to take away from specific passages beyond “STOP LETTING PEOPLE USE RELIGION AS AN EXCUSE TO DO WHATEVER THEY WANT WITHOUT CONSEQUENCES!” – a message that comes across loud and clear, all four hundred times. It’s sometimes the only thing that’s clear, as Hamilton seems to veer between addressing any reasonably informed reader and going on extended jeremiads of the sort no doubt entertaining for (slightly inebriated) scholars or law students but a bit obfuscated for the rest of us.

That said, I learned a great deal from this insider-perspective on a number of important constitutional and legal questions confronting the nation in recent decades. Although only about 15 years old, some of the issues she tackles (gay marriage comes to mind) have changed substantially since the book was published – although the ideas Hamilton expresses are still very much relevant to the larger discussion. She’s offered some intense food for thought in terms of the importance of balancing free exercise with establishment, and not mistaking “free exercise” for “extended license” simply out of fear one might be accused of being anti-religious. Religious individuals and institutions deserve the same rights and protections as everyone else, she insists – but not necessarily more than everyone else, and not at the expense of those same rights and protections for those impacted by their actions.

[Michael P. · Rating 4 out of 5]

The argument summarized:
1) Religion cannot be the basis of laws, because different religions have different values.
2) Religious institutions and people must be subject to secular laws because some institutions and people are corrupt or may become corrupt.
3) There is no basis for the claim of religious independence in the US Constitution or the First Amendment, nor in the writings of the founding fathers, or even in the writing of churchmen in the first century of the American republic.
4) When it is reasonable, religions may be accommodated by legislatures, but should not be by judges.
5) The accommodation must be consistent with the public good and applied evenly without favoring one religion over another.
6) The legislative determination must be debated under public scrutiny.
These points are amply supported by case law and history. The book is cogently argued. It is a times a trifle dull.

[Robert Powell · Rating 4 out of 5]

God vs. The Gavel by Marci Hamilton does express some worthwhile ideas and thoughts. Coming from a secular point of view, the validity to the concerns with which was expressed is real. There are many things that serve as blind spots if religious institutions are not given the proper check and balance as expected on the common people. There are areas where religious exemptions go too far in resulting to people being abused and neglected. However, there are areas where religious exemptions are overlooked. There is a very eloquent balance that must be thoroughly processed with lens that lacks bias, if that is at all possible. Definitely agree with the author in some thoughts, and also share disagreement too. Worthwhile for anyone who wants to learn more about the issue of church exemption, but I will warn some contents that may be triggering. All Glory be to God!

[Bruce · Rating 2 out of 5]

A terrific idea for a book, but I was looking for something with more detail and insight into the philosophical origins of religious supremacists and how they became so powerful, rather than a long list of case studies regarding the power that they have unjustly and extraconstitutionally yielded so frequently.

[Tim · Rating 3 out of 5]

God vs. the Gavel: Religion and the Rule of Law, written by Marci Hamilton, a professor at the Benjamin Cardozo School of Law, focuses on a somewhat relevant intersection of law and religion: when should religious conduct be exempted from generally applicable laws. Does exempting certain religious conduct raise issues under the First Amendment's stricture against government involvement in the establishment of religion? Conversely, does the failure to do so mean government is treading on the free exercise rights guaranteed by that same amendment?[return][return]Hamilton's bottom line is straightforward: the "no harm" rule. Simplistically stated, under that rule the law should accommodate religious conduct as long as that conduct does not cause harm to others. I largely agree but find difficulty with her belief that it is solely a legislative function to determine the extent to which the law should accommodate religion because it has the best tools by which to determine "the public good."[return][return]I think the rise of the religious right and what we've seen in Congress and state legislatures throughout the country helps undercut her contention. All too often, legislative bodies aren't willing to take the heat or withstand pressure from mainstream religions in defining the "public good." Moreover, if and when courts step in, they are too often condemned as being populated with "activist judges." Yet, sadly, Hamilton is probably right that of all branches of government, the legislative is probably the most equipped to deal with these issues.[return][return]Hamilton's analysis of and desire to apply the "no harm" rule is an excellent one. The question will always be whether legislative bodies do, in fact, consider the public good in making those decisions or whether they opt for religious and/or political expediency. Until then, the gavel is one of the few places minority religions or non-religionists can seek refuge from large religions imposing the will of god as they see it.[return][return]Originally posted at http://prairieprogressive.com/?p=456

[Eli Mandel · Rating 3 out of 5]

As a legal textbook it deserves 5 stars, as a book to educate the lay public it deserves 1 star.
As a layperson who managed to muddle through the whole thing I feel angry and kinda helpless; when the NAACP partners with the church and Agudath Israel to enact legislation making religion more equal that everyone else, we don't have a prayer of maintaining our rights.

[Rachel · Rating 4 out of 5]

Full disclosure: I worked on this book and am thanked in the acknowledgments. The first seven chapters are very interesting and for a general audience. Those without a legal background might not as interested in the last three chapters.

[Yi Chen Chong]

The book was OK, but I did not really agree with her point of view, and the logic was unclear