Sarah Barringer Gordon is a wonderful storyteller. In this book, she offers a history of law and religion in the twentieth-century United States from the “ground up,” organized around five elegantly constructed stories, full of rich and illuminating detail. Her narrative hinges on a crucial distinction between technical and popular constitutionalism. Her main characters are not Supreme Court justices and their often contradictory (and much maligned) decisions, but instead a remarkably diverse array of religious actors who deployed their own understandings of constitutional meaning and of religious freedom to remodel the legal landscape. Through this work, Gordon aims to bring together the narratives of U.S. legal and religious history, demonstrating persuasively how law and religion have shaped each other in often surprising and unexpected ways. Her compelling narrative makes it difficult to maintain that law and religion have ever been separate in the United States.
Gordon structures her narrative around six chronologically arranged chapters and a brief epilogue in which she reflects on where we are today. In the first chapter, she describes the emergence of a “new constitutional world” in the 1940s that applied the First Amendment's religion clauses against the states, thereby making the federal courts the central site for adjudicating claims related to religious freedom. But she also argues that the “spirit” of the new constitutional world already was alive and well during the old order, which she illustrates through the Salvation Army's early legal battles to defend its boisterous outdoor campaigns. In the second chapter she turns to the familiar story of the Jehovah's Witness flag salute cases. Gordon is at her best here when she describes the interfaith movement that provided critical support for the Witnesses and when she traces the link between these cases and the later insertion of “under God” into the Pledge of Allegiance. In chapter 3, she turns to the debates about religion and schools, focusing especially on the Protestant alliance that coalesced around eliminating state support for Catholic education but that fragmented when conservative Protestants decided that the effects of these decisions had gone too far. Chapter 4 turns to definitional questions by centering on the Nation of Islam's struggle during the 1950s and 1960s to gain legal recognition as a religion. She demonstrates how these cases had broader implications both for the rights of religious prisoners and for other new religious movements. In chapter 5, Gordon focuses on how Beverly LaHaye and the Concerned Women of America made sophisticated use of the legal system during the 1970s and 1980s to combat the threat of secularism. And in chapter 6, she documents the prominent role of liberal religious activists in the fight to legalize same-sex marriage. This chapter offers an important counterweight to the previous one, reinforcing Gordon's contention that religionists have not spoken with one voice when they have entered the public realm.
Through these varied stories, Gordon crafts a narrative that is accessible, compelling, and fun to read. This is far from the typical account you might find in a law school case book. Perhaps precisely for that reason, it also can come across as a bit idiosyncratic. She never explains or justifies her selections, so it is difficult to determine whether she finds these stories representative of broader trends, disruptive of traditional narratives, or simply interesting in themselves. While I appreciate her attention to popular constitutionalism, her story seems almost too detached from the shifting currents of technical constitutionalism, perhaps presuming too much of her readers. Moreover, Gordon adopts an overly romantic attitude toward her main protagonists, celebrating repeatedly their courage, their steadfastness, and their heroic commitment to personal freedom. She seems to take for granted that “religion is not like anything else” (209), inherently deserving of special privilege and accommodation. She does not take seriously recent criticism from scholars such as Marci Hamilton, who argued in God vs. the Gavel (New York: Cambridge University Press, 2005) that American law has been overly protective of religious rights, enabling religionists to avoid accountability for the harm they have done to others (especially children). She moves almost effortlessly from Black Muslim inmates and other religious dissenters to Charles Colson's Prison Fellowship Ministries. She describes the Concerned Women of America as “agents of a more pluralist public sphere, where religious as well as other voices have a right to speak” (141), accepting this group's claims at face value without subjecting them to critical analysis. Her seamless narrative obscures the very different positions of power from which her protagonists speak and the very different nature of their understandings of religious freedom.
At the same time, Gordon's book is full of brilliant observations and provocative insights. She recovers many details from our past that have been ignored, neglected, or overlooked by U.S. religious and legal historians. For example, her chapter on religion and education focuses on “captive school cases,” lower court decisions about “Catholic” public schools that blur the usual distinction between public and parochial school cases. Or in chapter 4, we learn that Elijah Muhammad served in prison alongside thousands of Jehovah's Witness conscientious objectors during the 1940s, and that Muhammad not only drew inspiration from the Witnesses but also borrowed from them specific legal strategies. In fact, the greatest strength of Gordon's book is how she maps the shifting coalitions and unexpected alliances across religious boundaries that transformed the U.S. legal landscape. She demonstrates persuasively how American religionists did not just “happen” to find themselves in courtrooms, but instead how their turn to law was the product of deliberate and carefully calculated strategy. And she unpacks the often unintended consequences that this turn to law has produced. Her wonderful stories urge legal historians to take religious history more seriously—and, more importantly for readers of this journal, vice versa. Religion and law emerge from her account as mutually constitutive and dynamic forces in American life, each continually shaping and shaped by the other.
