Fairer Still the Woodlands: Mapping the Free Exercise Forest: Review of Kent Greenawalt, Religion and the Constitution
John Witte Jr.
Emory University School of Law
Constitutional Commentary, Vol. 24, pp. 551-565, 2008
Kent Greenawalt’s book, "Fairer Still the Woodlands: Mapping the Free Exercise Forest," is a master work that summarizes the most recent cases involving the Free Exercise Clause. Recent cases involving the Free Exercise Clause are very conservative, and the founding principles of the Clause have been neglected, thereby weakening the protection of the Clause, but state courts provide more liberty. Greenawalt’s book is a clear map and a cogent guide to First Amendment questions.
This review focuses on the first volume of Greenawalt’s work, which focuses strictly on the Free Exercise Clause. Greenawalt poses the problems that come before the courts, rehearses the cases, statutes, and regulations, then provides a critical reading. Greenawalt goes beyond the Supreme Court cases, discussing what constitutes a prima facie free exercise case. Greenawalt’s work is written with elegance, power, and lucidity, and he is critical of the courts when necessary.
According to Greenawalt, the right path for courts to take requires the government to accommodate maximum expression of religious conviction that is consistent with commitment to fairness and public welfare. The questions he poses are not simple, and Greenawalt rebukes the Supreme Court’s reductionist reading of the Free Exercise Clause, especially criticizing the Court’s abandonment of precedent. However, Greenawalt does not embrace the "strict scrutiny" standard that required a state interest and the least restrictive route to achieving it. Greenawalt argues that such a standard lacks fairness and that an uncritical application of that standard can lead to favoritism and to bad faith cases.
Furthermore, religious accommodation issues are for legislation and state courts, not federal courts. Free speech protections are not substitutes for the Free Exercise Clause because they are not expansive enough, and the current statutory scheme is too fractured. Instead, Greenawalt calls for an intermediate balancing test, asking for mutual restraint from courts and suing parties. He hearkens back to the founder’s vision of religion, in which it receives special protection. The Free Exercise clause protects against proscription of religion, while the Establishment Clause protects against prescription of religion.
Number of Pages in PDF File: 16
Keywords: Kent Greenawalt, Review, First Amendment, Free Exercise, Religious AccomodationAccepted Paper Series
Date posted: March 30, 2011
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