Cover image for Religious liberty in America : political safeguards
Religious liberty in America : political safeguards
Fisher, Louis.
Personal Author:
Publication Information:
Lawrence, Kansas : University Press of Kansas, [2002]

Physical Description:
xii, 266 pages ; 24 cm
Who protects minority rights? -- The struggle for religious liberty -- The religious lobby -- Conscientious objectors -- Flag-salutes and yarmulkes -- School prayer -- Indian religious freedom -- Religious use of peyote -- Statutory exemptions.

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KF4783 .F57 2002 Adult Non-Fiction Non-Fiction Area

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It is often assumed that the judiciary--especially the Supreme Court--provides the best protection of our religious freedom. Louis Fisher, however, argues that only on occasion does the Court lead the charge for minority rights. More likely it is seen pulling up the rear. By contrast, Congress frequently acts to protect religious groups by exempting them from general laws on taxation, social security, military service, labor, and countless other statutes. Indeed, legislative action on behalf of religious freedom is an American success story, but one that renowned constitutional authority Fisher argues has been poorly understood by most of us.

Taking in the full span of American history, Fisher demonstrates that over the course of two centuries of American government Congress has often been in the forefront of establishing and protecting rights that have been neglected, denied, or unrecognized by the Court-and that statutory provisions far outstrip, in both number and importance, the court cases that have expanded religious rights.

In this concise and insightful book, Fisher presents a series of important case studies that explain how Supreme Court rulings on religious liberty have been challenged and countermanded by public pressures, legislation, and independent state action. He tells how religious groups interested in securing the rights of conscientious objectors received satisfaction by taking their cases to Congress, not the courts; how public uproar over a 1940 Supreme Court ruling sustaining compulsory flag-salutes resulted in a court reversal; and how Congress intervened in a 1986 ruling upholding a military prohibition of skullcaps for Jews. By describing other controversies such as school prayer, Indian religious freedom, the religious use of peyote, and statutory exemptions for religious organizations, Fisher convincingly demonstrates that we must understand the political and not just the judicial context for the safeguards that protect religious minorities.

As this book shows, the origin and growth of an individual's right to believe or not believe--and the securing of that right--has occurred almost entirely outside the courtroom. Religious Liberty in America persuasively challenges judicial supremacists on church-state issues and provides a highly readable introduction for all students and citizens concerned with their right to believe as they wish.

Author Notes

Louis Fisher is Senior Specialist in Separation of Powers at the Congressional Research Service, Library of Congress.

Reviews 2

Library Journal Review

Like former Supreme Court Chief Justice Earl Warren, Fisher (Library of Congress; Presidential War Power) recognizes that the judiciary has a limited role in safeguarding individual rights. Here he discusses the historical role of the legislative and judicial branches of government in relation to church-state matters. Presenting "case studies" on a variety of topics, including conscientious objectors, school prayer, and peyote in religious services, Fisher explains how Supreme Court rulings on religious liberty have been challenged and countermanded by public pressure, legislation, and state action. Early pioneers did not depend on court decisions for preserving religious liberty, but the legislative process and the activity of the First Congress assisted in erecting a wall between church and state. Fisher admits that he does not cover every topic on religious liberties but gives sufficient evidence to support the idea that we, the people, and not the judiciary provide the safeguard to religious practices. A good overview of the history of religious law in America for academic religious and law collections.-Leo Kriz, West Des Moines P.L., IA (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Choice Review

The thesis of this book is quite simple: religious liberty in the US is protected primarily by the political process (conceived broadly as the interaction among public opinion, elections, legislatures, and executive politics), rather than by the process of judicial review. Fisher (Congressional Research Service) shows that the courts have been uncertain allies in the struggle for religious freedom, while legislatures and public opinion have largely been supportive of religious liberty, even when such claims have been advanced by unpopular majorities. Fisher is generally not argumentative but presents a series of extended examples ranging across a variety of topics, including conscientious objection, school prayer, Native American religions, and, more specifically, Native Americans' use of peyote, which provided the subject matter for the landmark 1990 Employment Division of Oregon v. Smith. Interestingly, the thesis does not seem dependent on any particular jurisprudential or ethical theory of church-state relations. The examples are sufficiently comprehensive to allow the work to serve as a general reference. ^BSumming Up: Recommended. Upper-division undergraduates and above. T. G. Jelen University of Nevada, Las Vegas

Table of Contents

Acknowledgmentsp. ix
Note on Citationsp. xi
Introductionp. 1
1. Who Protects Minority Rights?p. 4
Conventional Viewsp. 4
Early Lessons (1789-1861)p. 6
After the Civil Warp. 13
Prohibiting Polygamyp. 20
Twentieth-Century Disputesp. 27
2. The Struggle for Religious Libertyp. 32
Colonial Precedentsp. 32
Locke's Influencep. 36
The Virginia Statute of 1786p. 39
Meeting at Philadelphiap. 43
Activity by the First Congressp. 48
The Bill of Rightsp. 54
3. The Religious Lobbyp. 58
Madison's Factionsp. 58
Religious Activismp. 60
Organizing for Actionp. 71
4. Conscientious Objectorsp. 82
The Colonies and Early State Governmentsp. 82
The First Congressp. 84
Civil War Exemptionsp. 87
World War I Experiencesp. 91
Broadening the Exemption in 1940p. 96
Belief in a Supreme Beingp. 99
Current National Policyp. 103
5. Flag Salutes and Yarmulkesp. 105
Compulsory Flag Salutep. 105
The Yarmulke Casep. 114
6. School Prayerp. 123
Misunderstanding the Rulingp. 123
Reagan Initiativesp. 132
Equal Access Actp. 135
Local Noncompliancep. 138
Moment of Silencep. 139
Clinton's 1995 Memop. 140
Continued Challengesp. 142
7. Indian Religious Freedomp. 147
Propagating the Gospelp. 147
Indian Removalp. 151
Grant's Peace Policyp. 155
The Stirrings of Reformp. 158
Protective Legislationp. 163
8. Religious Use of Peyotep. 175
Peyotismp. 175
The Case of Al Smith and Galen Blackp. 183
The Religious Freedom Restoration Act (RFRA)p. 189
9. Statutory Exemptionsp. 202
Tax Exemptionsp. 202
Prohibition Statutesp. 209
Exemptions from Social Securityp. 213
Federal Discrimination Lawsp. 217
Labor Lawsp. 221
Animal Slaughterp. 222
Conclusionsp. 227
Bibliographyp. 235
Index of Casesp. 255
Subject Indexp. 261