Religion and the Constitution, Volume 1: Free Exercise and Fairness

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to their children--or the refusal of doctors to perform abortions? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity. In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause. Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula. Calling throughout for religion to be taken more seriously as a force for meaning in people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.

Preface ix CHAPTER 1: Introduction 1 CHAPTER 2: History and Doctrine 11 CHAPTER 3: Freedom from Compelled Profession of Belief, Adverse Targeting, and Discrimination 35 CHAPTER 4: Conscientious Objection to Military Service 49 CHAPTER 5: Religious Exemptions and Drug Use 68 CHAPTER 6: Free Exercise Objections to Educational Requirements 86 CHAPTER 7: Sincerity 109 CHAPTER 8: Saying What Counts as Religious 124 CHAPTER 9: Controlled Environments: Military and Prison Life 157 CHAPTER 10: Indirect Impingements: Unemployment Compensation 172 CHAPTER 11: Sunday Closing Laws and Sabbatarian Business Owners 184 CHAPTER 12: Government Development of Sacred Property 192 CHAPTER 13: Difficult Determinations: Burden and Government Interest 201 CHAPTER 14: Land Development and Regulation 233 CHAPTER 15: Confidential Communications with Clergy 246 CHAPTER 16: Settling Disputes over Church Property 261 CHAPTER 17: Wrongs and Rights of Religious Association: The Limits of Tort Liability for Religious Groups and Their Leaders 290 CHAPTER 18: Employment Relations: Ordinary Discrimination and Accommodation 326 CHAPTER 19: Employment Relations: Harassment 359 CHAPTER 20: Rights of Religious Associations: Selectivity 377 CHAPTER 21: Medical Procedures 396 CHAPTER 22: Child Custody 421 CHAPTER 23: Conclusion (and Introduction) 439 Index 445