The Rhetoric of Church and State

A Critical Analysis of Religion Clause Jurisprudence

Book Notice

The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence, by Frederick Mark Gedicks (Duke University Press, 1995)

This book, written by a BYU law professor, is sure to command the attention of those with an interest in First Amendment religious issues, legal history, or legal and political philosophy, especially regarding church and state.

The author sees a major crisis in religion clause jurisprudence: the Supreme Court’s doctrine of church and state is grounded in two distinct and conflicting discourses. The first is religious communitarianism, which dominated Supreme Court decisions until the middle of the twentieth century. Communitarianism is generally respectful, accommodating, and supportive of traditional Judeo-Christian values. The second discourse is secular individualism, which developed in the 1950s. Now the prevailing doctrine of the Court, secular individualism takes a more critical stance toward religion, relegating it to the role of a purely private institution toward which government is to remain strictly neutral.

Gedicks argues that the Court’s shift from the principles of religious communitarianism to those of secular individualism is problematic because it has been partial and incomplete: “While the Court is committed to principles of secular individualism, it has repeatedly endorsed government actions that violate those principles—actions that would be far more justifiable under the discourse of religious communitarianism” (back cover). Because communitarianism and secular individualism are fundamentally irreconcilable, the Court has forced itself to diminish the religious characteristics of practices it actually sanctions. For this reason, the Supreme Court’s religion clause doctrine has become inconsistent, convoluted, ineffective, and, as a result, disrespected.

The solution does not lie in attempting to fix what is broken. The current Court doctrine lacks both popular support and internal consistency and is therefore beyond repair. The answer that Gedicks proposes is to develop an entirely new discourse that would first “attract popular support” and second protect “a meaningful measure of religious freedom” (back cover). Gedicks does not articulate precisely what this new discourse should be—that would require another book.

This work succeeds brilliantly in doing what it set out to accomplish. The reader is left fully aware of how the Supreme Court got itself into its current predicament regarding church and state.

 

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