When Free Exercise and Nonestablishment Conflict
The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Taken as a whole, this statement has the aim of separating church and state, but tensions can emerge between its two elements – the so-called Nonestablishment Clause and the Free Exercise Clause – and the values that lie beneath them.
If the government controls (or is controlled by) a single church and suppresses other religions, the dominant church’s “establishment” interferes with free exercise. In this respect, the First Amendment’s clauses coalesce to protect freedom of religion. But Kent Greenawalt sets out a variety of situations in which the clauses seem to point in opposite directions. Are ceremonial prayers in government offices a matter of free exercise or a form of establishment? Should the state provide assistance to religious private schools? Should parole boards take prisoners’ religious convictions into account? Should officials act on public reason alone, leaving religious beliefs out of political decisions? In circumstances like these, what counts as appropriate treatment of religion, and what is misguided?
When Free Exercise and Nonestablishment Conflict offers an accessible but sophisticated exploration of these conflicts. It explains how disputes have been adjudicated to date and suggests how they might be better resolved in the future. Not only does Greenawalt consider what courts should decide but also how officials and citizens should take the First Amendment’s conflicting values into account.
Arts and Humanities | Constitutional Law | Ethics and Political Philosophy | Jurisprudence | Law | Philosophy | Religion
Harvard University Press
“Greenawalt delivers just what he promises in this volume’s matter-of-fact title: a detailed examination of the various tensions between the free exercise and establishment clauses of the First Amendment. Chapters cover a wide range of issues, from religious practice within government institutions (namely the military and prisons) to various religious exemptions from laws concerning drug use, medical insurance, and zoning restrictions.”
—R. J. Meagher, Choice
“Kent Greenawalt has been writing about the religion clauses for many years, and his work is so voluminous that only a few specialists are familiar with it. This book, beautifully written and demonstrating the author’s easy mastery of complex legal theories, presents the major Greenawaltian themes in a shorter form, with some new arguments in response to current issues, such as Hobby Lobby and the controversy over gay rights and religion.”
—Andrew Koppelman, author of Defending American Religious Neutrality
“Greenawalt is a leading figure on religious freedom in the United States, and he has written a compelling and sophisticated book. Not only is his mastery of First Amendment jurisprudence evident here, but also his deep understanding of related areas, such as political philosophy and legal interpretation. Greenawalt’s unique methodology illustrates how it is possible to assess constitutional values with care and precision across a breathtaking range of cases and issues.”
—Nelson Tebbe, author of Religious Freedom in an Egalitarian Age
Greenawalt, Kent, "When Free Exercise and Nonestablishment Conflict" (2017). Faculty Books. 215.