God vs. the Gavel

cover53072-smallMarci A. Hamilton
2014

You know why we haven’t had a religious civil war yet, like the rest of the world? Because we did not have extreme religious liberty until now.

 

At the start of God vs. the Gavel: The Perils of Extreme Religious Liberty, Professor Hamilton writes that she has produced this updated edition of her 2007 book because

we are at risk of a permanent shift that threatens to transform the United States from a thriving, diverse community of religious believers who share a marketplace and a public square into a collection of separate mini-theocracies, where we are more concerned about the religion of the person sitting next to us than the fact that they are a fellow American and where we need to know the religion of a Fortune 500 company’s owners to know what our health coverage will be.


This second edition of God vs. the Gavel includes updated legislation and case law on such current hot-button topics as gay marriage and religious objections to “Obamacare.” It’s up-to-date enough to discuss the Hobby Lobby case, although, publishing being what it is, it was completed before the Supreme Court handed down its decision.

Hamilton’s tone in the passages above is typical of the book as a whole. As good as this book is at framing the legal issues involved in religious exemption claims, God vs. the Gavel is really two books in one. The “first” book delves deeply into the precedents and judicial precepts that underlie recent legal rulings on the extent to which religious persons (and their churches) must obey common law. The “second” book is an argument for a particular position — religious belief does not exempt the faithful from the social responsibility to do no harm to others, a responsibility that is the basis of our legal system. Hamilton is adamantly opposed to what she calls “extreme religious liberty,” precisely because “religious entities” have “foisted a definition of the First Amendment onto the American people that means, in effect, that they are immune to all but the most necessary laws.”

Hamilton begins with the history of U. S. federal legislation that in the last few decades dramatically increased the power of religious exemptions to all kinds of sensible and, in her view, necessary legal protections for individuals. If you claim religious grounds, she shows, you can excuse yourself from many kinds of responsibilities and violate many kinds of human rights and are free to inflict many real harms on others, not least of whom may be your own children.

The notion of “do no harm” lies at the root of Hamilton’s conception of the proper limitation of religious freedom. She writes that “True religious liberty recognizes an absolute right of belief and a right not to be discriminated against, but at the same time, the government’s necessary power to regulate religious conduct to serve the public good.”

God vs. the Gavel argues that the right balance is achieved by subjecting believers to the rule of law that applies to every other entity within the country – unless they can prove that exempting them will not harm others.

While the rights and protections of same-sex couples have been growing, the same progress has not been made in protecting the children of extremely religious parents. Hamilton discusses at length the ways that some religious people avoid prosecution for child abuse, commonly through institutional cover-ups or reluctant prosecutions.

As well, she charts the too frequent medical abuse of children. Vaccination exemptions on religious grounds threaten not just the neglected child but the entire community, as a very recent outbreak of measles among Christian communities in nearby Abbotsford, BC, demonstrates. Medical neglect, refusing necessary treatment, and faith healing all claim young victims. Worst of all is routine and involuntary female genital manipulation. All of these forms of medical abuse are “justified” by the religious fervour of adults, who willingly sacrifice children on their own altars.

Other forms of child abuse practiced by the religious include polygamous sects forcing marriage on barely-pubescent multiple brides, while at the same time “exporting” excess male children, often simply by driving them into town and abandoning them to their own resources. Hamilton spares no sympathy for the Amish fundamentalists who pull their children out of school in order to keep them ignorant of the world — and unable to make the most of the life choices available to most of us.

Catering to religious rights in schools, prisons, and the military forces the larger society to make problematic, sometimes dangerous accommodations, from Sikh teenagers who are allowed to carry swords to school to pro-terrorist imams who are free to recruit jihadists in state and federal prisons.

The most current material is the new section on the Hobby Lobby case. Writing before the Supreme Court’s decision that a “private” corporation with religious owners can impose those owners’ religious restrictions on the rights of their employees, Hamilton writes that she was “frankly shocked” when the court agreed to hear the case.

There is no precedent in American history that would accord free exercise rights to a corporate behemoth like Hobby Lobby. And there is legislative history of the current [Religious Freedom Restoration Act] that indicates that a company like Hobby Lobby can’t have religious beliefs by its nature.

Hamilton writes of Hobby Lobby and Conestoga Wood and similar corporations: “They do not have a religious belief. They do not have a religious practice. It is not in the nature of such corporations to have such religious beliefs or practices.” Nevertheless, the ultra-conservative majority on the Supreme Court ruled in favour of the companies, in effect affirming that if you pay someone’s wages you have the right to violate their right to the health benefits provided by law.

There is much to like in God vs. the Gavel, even for those of us who are not law school students and, to be honest, skim the legal details that take up perhaps too much of the book’s available space.

But it’s most unfortunate that the book was rushed into print before the author could deal more fully with the immensely important and highly controversial Hobby Lobby case.

 

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One thought on “God vs. the Gavel

  1. Of course, an obvious example of thriving religious liberty was ancient Rome and we know where that went … or was Rome a collection of separate mini-theocracies and we don’t know squat about religious history. Or both? Maybe neither?

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