With Liberty for All: Freedom of Religion in the United States.

Bradley, James E.

With Liberty for All: Freedom of Religion in the United States. By Phillip E. Hammond. Louisville: Westminster John Knox, 1998. xvi + 128 pp. $16.00 paper.

Philip E. Hammond's brief survey of the debate over the First Amendment to the Constitution provides a helpful, clearly written introduction to the topic for the nonspecialist. The study investigates the tension between the so-called "free exercise" clause and the "no establishment" clause by summarizing a complex series of court decisions and synthesizing the results with the best recent scholarly commentary. The topic is not only complex from an historical and legal standpoint; it is, as everyone knows, highly contested, and the great strength of this book lies in the author's ability to bring reason and insight to bear on both sides of the debate. Once that is said, it is well to note that the book aims at being more than a detached piece of scholarship. The author's advocacy of a strict separation between church and state and of broadening "religion" to embrace "conscience" is evident in every chapter.

In opposition to the well-publicized works of John Richard Neuhaus and Stephen Carter, Hammond argues that the government has rightly taken a progressively greater stance of neutrality toward religion, and that in the process, it has actually moved from an accommodationist to a separationist perspective. The author concedes that for more than a century the Constitution was interpreted in light of its Protestant roots; clearly there was massive accommodation to Christian hegemony in this period in such areas as education. But gradually (and ineluctably), thanks to structural changes that no person or group willed into existence, both national and state governments have moved from greater accommodation of religion to less, and from less government neutrality to more. Rather than arguing over the question of the intent of the "framers" of the Constitution, Hammond shows persuasively that in a succession of interpretations involving dozens of cases in a variety of states and in the Supreme Court, one can discern a clear movement from the mere toleration of a variety of religions to genuine principles of liberty. Such is the first main thesis of the book.

Second, Hammond wants to argue that under the "free exercise" clause, one's "conscience" in the sense of one's philosophical or personal beliefs, whether religious or not, should be protected. Conviction, rather than the substance of conviction, is what must be honored in the American system. The case of United States vs. Ballard (1944) is critical to his argument because here the Supreme Court determined that the government must not become involved in determining the truth or falsity of any religion, thereby leaving the door open to construe any conviction as falling under the protection of the First Amendment. But "alas," writes Hammond, the issue was not finally settled by Ballard. Nevertheless, the result of numerous court cases suggests that what constitutes religion has itself broadened to include conscience, even if conscience involves a conscientious unbelief in a higher power. Hammond then unites the historical development with the evolving legal interpretation: in this way the historical and logical unfolding of interpretations in the direction of granting individual conscience the same status as religious conviction is used to recommend adoption of the broader category.

Once he has arrived at this point in his argument, Hammond is faced with an apparent dilemma: if it is conscience that is protected by the free exercise clause, is it conscience that Congress must not establish? Candidly putting the argument this way shows how far such a line of reasoning has departed from eighteenth- and nineteenth-century understandings of the Constitution. Clearly there has been significant movement here from the free exercise of corporate worship to a focus on the individual, and from the free exercise of religion to the holding of any conviction. Once conscience is accorded the protection of religion, Hammond believes that establishment cases will necessarily involve "free exercise" considerations, because in such cases nonreligious persons are likely to claim an imposition on the strength of their consciences alone. To this date in our history, laws supporting homosexual rights, abortion, and euthanasia have typically been adjudicated on the basis of the "due process" clause of the Constitution. But, argues Hammond, laws in such instances have typically supported the majority view and thereby infringed the liberty of a minority, in the sense of imposing burdens on the consciences of the minority, and thus violated both halves of the religion clause of the First Amendment.

This is a bold, if not unique line of argument, that raises an enormously complex set of issues and presents difficulties compounded by the brevity of the treatment. For example, Hammond argues that conscience is common to both theists and nontheists, but conscience is the more basic category because conscience "precedes" religion. Evidently, readers of this book would be well advised to consult theologians as well as ethicists in order to make significant progress here. Historians as well as sociologists will also need to be consulted, because there will be those like myself who support a separationist viewpoint but who cannot be persuaded to go the full distance of the author's logic. Typically, historians will be far less inclined to adopt categories of historical inevitability than one finds here. On the other hand, the slightly triumphalistic one that emerges from these pages regarding the "inevitable" progress of "liberty" is certainly understandable in light of the great number of individuals who have felt the oppression of Christian hegemony in both its older and more recent varieties.

James E. Bradley Fuller Theological Seminary