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When Free Exercise and Nonestablishment Conflict, Kent Greenawalt

Reviewed by Lucas Swaine


This fine book explores tensions between the free exercise and establishment clauses of the First Amendment. Divided into 10 chapters, the book offers reflections and recommendations for the American experience, seeking to address a wide range of subjects in “easily accessible” ways (p. 3). The topics and subtopics run the gamut, with Greenawalt examining such matters as financial support for religious institutions, government involvement with religious practices, exemptions and other forms of favorable treatment, the distinctiveness of religion, and the place of religious convictions in public life.

Greenawalt highlights distinctions between constitutional requirements, constitutional limits, and what would be “just and wise” to do (pp. 2, 3, 21; cf. p. 248). Values of free exercise and nonestablishment can count even when dealing with constitutionally permitted practices, he proposes, or when constitutional requirements are not at issue (p. 56; cf. p. 136). In cases in which judicial deference would prevent legislation from being ruled invalid, legislatures still ought to consider whether proposed decisions would violate the Constitution (pp. 45-46, 56).

With these markers in place, Greenawalt unfolds a nuanced jurisprudential map. There are hazards everywhere. Parents who decline to seek medical care for their children raise “genuinely troubling questions” for courts and lawmakers (p. 114; cf. p. 105). On whether to permit aid to religious institutions that provide public services, an “incredible complexity of factors” can matter to the “best resolution” of any particular case (p. 62; see also p. 175). Existing law on free exercise and establishment is complicated and “genuinely confusing,” Greenawalt reflects, often leaving it “extraordinarily difficult” to see what constitutional standards require (pp. 2, 76, 248). Many of the salient questions are complicated (pp. 121, 181; cf. p. 193), several have no simple answer (pp. 98, 99, 133, 164), and, in various circumstances, there is “really no rational answer” to the questions at hand (p. 237; cf. p. 248). “Genuine conflicts” divide free-exercise and nonestablishment values; how to handle the strains is often “difficult to say” (p. 176).

Greenawalt reckons the complexities militate in favor of leaving a good bit of decision-making to “legislative choice” (p. 95; see also pp. 201–3). But this does not prevent him from forming judgments on particular cases. He chews over the “illogical” elements of Antonin Scalia's Smith opinion, for instance, chiding also the U.S. Supreme Court's “seriously misguided” approach in Hobby Lobby (pp. 111, 122; see also p. 188). To these points he attaches musings on overarching normative questions. “People should not be required to participate directly in practices they see as fundamentally wrong,” he states (p. 130; cf. pp. 150–51). “Nearly always,” he avers, “understanding and tolerating the views of others is extremely important.” (p. 133; see also p. 249).

Greenawalt emphasizes the “significance of multiple factors” to the topics he addresses, skillfully assessing and including a multitude of considerations (p. 76). This is the book's primary strength. It deftly charts the intricate landscape of free-exercise and establishment concerns, providing valuable guidance for those who venture into thorny domains of religion and law.

Some may, of course, wonder about the structure underneath the topography or the “weighing process” that Greenawalt employs to reach his judgments (p. 105). What gives weight to a consideration, when free exercise and establishment questions are afoot? How does one gauge the relative force of salient factors, and how much weight does each such consideration enjoy? Does complexity sit heavy in the balance, and might cardinal principles underpin sage and rightful judgment on the matters at hand? Greenawalt's excellent scholarship fosters these questions and blazes new lines of inquiry, imparting lasting contributions to constitutional theory and its cognates.

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