This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).
Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase public awareness of the dark side of religion in contemporary American public life. She advocates a restrictive constitutional test for government accommodation of religious practices and supports vesting robust discretion in the legislature to determine how that test should be administered, and by whom. To this end, she proposes a principle that measures the social harm that protection of religious belief would entail. "The right free exercise doctrine," Hamilton says, "gives a wide berth to religious belief, but follows the rule that no American may act in ways that harm others without consequence. Hamilton also repeatedly invokes the concept of the "public good," or "common good" or "public interest," as she variously calls it, to justify her restrained views of religious accommodation.
This review offers a critical appraisal of God vs. the Gavel, in particular of Professor Hamilton's discussion of the complicated idea of the public good and how it intersects with religious free exercise interests. In Part II, the review explains the structure of the book and the framework for Hamilton's conclusions about religious accommodation. It emphasizes several instances of Hamilton's use and explanation of the concept of the public good. Part III articulates Hamilton's general theory of the public good, breaking the concept down into several distinct categories suggested by the book itself. The review critiques the book's explanation and application of the public good principle and suggests that it is an ambiguous and unstable concept, and one that often substitutes either for particular interests or the author's policy preferences on a variety of issues. Part IV offers some observations about the principal virtue of God vs. the Gavel: Professor Hamilton's bracing and illuminating exposition of the recent and ongoing abuses that have been justified in the name of free exercise of religion. The review concludes by considering whether religious interests can ever play a role in the determination of Hamilton's public good, and if so, in what way.