Interpreting the Free Exercise of Religion: The Constitution and American
Chapel Hill: University of North Carolina Press, 1998. 294 pp. Notes and
index. $45.00 (cloth), ISBN 0-8078-4674-0 ISBN 0-8078-2399-6; $17.95
(paper), ISBN .
Keith E. Whittington , Princeton University.
Interpreting Religions, Doctrines and the Constitution
book very much fulfills the expectations created by its title. Evans has
provided an exhaustive, clear and well organized account of how the free
exercise clause of the First Amendment to the U.S. Constitution has been
interpreted by the Supreme Court over the past few decades. The book is not
primarily historical in its conception or scope, but rather is focused on
the myriad developments in the Court's free exercise jurisprudence in the
thirty-five years since Justice William Brennan's pathbreaking majority
opinion in Sherbert v. Verner. Evans spends very little time
analyzing earlier free exercise cases or their precursors and has little
interest in the origins of either religious freedom in America or its
constitutional protection. She does provide a very helpful and skilled
overview of recent doctrinal developments, clarifying what has been at
stake, what conceptual problems have been faced by the Court, and what
normative and empirical resources are available for evaluating the Court's
book ultimately builds a normative argument about how the Court should
interpret and apply the free exercise clause, but the bulk of the book is
primarily descriptive, and the normative components are largely confined to
chapter endings and the final short chapters. Evans' discussion is detailed,
extensive, and largely successful in her primary goal of elaborating
"comprehensively and systematically what the 'Free Exercise of Religion' has
come to mean in contemporary practice," at least if we understand
"contemporary practice" to refer to the activities of the Supreme Court (p.
2). Unfortunately for the reader, Evans' focus is narrowly doctrinal, and
she does not extensively incorporate the activities of state or lower
federal courts, litigants, elected officials or private actors into her
analysis of what free exercise has come to mean in lived practice. Likewise,
her approach is analytical rather than empirical, and she has little to say
about how these doctrines came about. The absence does not seriously weaken
her own analysis, but it does limit the scope of the book.
first chapter provides a nice mapping of the issues. Evans employs a kind of
Dworkinian notion of integrity in order to interpret the free exercise
clause. Ultimately, the best interpretation of the clause is one that makes
sense out of existing precedents and the whole of the constitutional text.
She rejects at the outset the possibility of religious neutrality, a once
prominent approach to understanding the clause. Some religious practices are
simply inconsistent with our constitutional values, and Evans argues that
the Court must expressly disfavor those practices. Finally, she outlines
five understandings of the nature of religion and the purpose of the free
exercise clause. The five theories identified by Evans include voluntarism,
in which the clause protects religious choice; conscience, in which the
clause protects the sanctity of individual religious beliefs; separation, in
which the state is protected from religious conflict; constraint, in which
religion provides a limit on state power; and pluralism, in which the clause
fosters the development of multiple overlapping nomoi. These five approaches
are carried through the book, and she concludes each chapter with a brief
explication of how the issues in that chapter would be understood under each
of these competing theories. These accounts are loosely derived from
historical arguments, contemporary theorists, and judicial opinions, but
Evans favors pluralism and regards the others as useful but ultimately
partial accounts of the value of religious liberty.
core chapters of the book take up different components of the judicial
application of free exercise principles. Chapter Two examines threshold
issues, the problem of defining and recognizing genuine religions. The First
Amendment has singled out the free exercise of religion for special
protection, and so the Court has been forced to determine whether new
organizations constitute constitutionally recognizable religions, whether
individual ethical commitments are "religious" in nature, and whether
unorthodox or idiosyncratic practices are covered by the clause. Employing
theological and sociological research, Evans favors a fairly broad
understanding of religion, but she usefully surveys the range of definitions
that have been offered and links them to different accounts of the purpose
of the free exercise clause.
Chapter Three focuses on burdens to religious beliefs and the effort to
distinguish beliefs from actions and conflicts between state and religious
efforts to shape individual beliefs. Chapter Four examines the definition of
a religious practice, and Evans persuasively indicates the complications
raised not only by relatively unorthodox religions but also by reformist
religions that invest a range of social activities with religious
significance. Against efforts to define the centrality of a practice for a
given religion ("Is polygamy really central to Mormonism?"), Evans suggests
that the Court focus on concentric circles of religious activities. Circles
ranging from rituals to personal care to "diffuse" activities bring the
religious practitioner into progressively greater contact with the larger
society and are entitled to increasingly less protection as a consequence,
regardless of their theological significance to the believer. Although
interesting, I was not convinced that this approach is any more compelling
or easier to apply than the alternatives. The definition and protection of
identity symbols, rituals, and the preconditions of religious practice seem
no less controversial than protecting practices that are "central" to a
Chapter Five considers the institutional rights of religious organizations,
in contrast to the rights of individual religious believers. Evans makes a
strong case for the communal element of religion, and thus the need to
provide security for the institutional context of religious exercise.
Chapter Six examines the importance of religious identity to the "free
exercise" of religion, again emphasizing the communal dimension of the
religious experience that cannot be readily reduced to a matter of abstract
church doctrine or individual duties of conscience. Chapter Seven surveys a
variety of direct and indirect "burdens" on religious practices that do not
coerce belief but may render the free exercise of religion more difficult.
The final two chapters enter into the recently enlivened debate over
religious accommodation and defend Evans' vision of value pluralism.
her careful survey of the free exercise cases and categorization of the
issues involved in them, Evans' real contribution to the debate is the
introduction of a primarily sociological literature investigating the
definition and purposes of religion in human society. In doing so, Evans
introduces a greater sensitivity to the variety of religious experiences and
to the significance of religion as a social practice. Evans' concern
is not merely that legislators might be hostile to minority religions, but
that they might not understand them. As a consequence, even well-intentioned
politicians and judges may accidentally burden religions by not recognizing
the importance of sacred lands to Native Americans, yarmulkes to Orthodox
Jews, or employee faith to Mormons. The concluding applications of the
various approaches to religious liberty are usually brief and rarely very
enlightening, however. The book is occasionally repetitive as similar
conflicts reemerge in different contexts and sometimes takes odd detours,
such as a fairly lengthy consideration of the coerciveness of "cults."
pluralist approach advocated by Evans is interesting but insufficiently
developed. The book is not intended as a contribution in political theory,
but the normative framework seems a bit patched together and largely
undefended. Partly as a consequence, Evans' arguments often seem directed at
the wrong institution. There is a broader political vision at work here, but
Evans carefully channels it into an analysis of judicial rulings rather than
giving it free rein over the broader structural and policy landscape of
American politics. In keeping with her judicial orientation, she takes
current political structures for granted even where her pluralist theory
would seem to call for a broader critique. For example, she finds
establishment/free exercise conflicts in public education, but then winds up
trivializing the free exercise claims in order to escape the conflict.
Whether the concerns of fundamentalist parents over the curriculum of public
schools look like an imposition on the larger society depends a great deal
on where you enter the debate. Evans seems aghast that "the parents'
argument brings into question the entire educative function of the state"
(p. 85). Well, yes. Rather than seriously considering that question,
however, Evans shifts into an attack on "neutrality" which was not the point
at all. This limited perspective also raises problems with the judicial
role. Not only does Evans involve the judiciary in quite a bit of
second-guessing of legislative judgment, but her approach also invites ad
hoc solutions. Her normative theory and sociological analysis of religion
seem to call for a serious questioning of how free we can be under the
modern state, with its extensive regulatory and educative activities.
Instead of making a broader examination of the structural trade-offs we have
made between religious liberty and democracy, however, Evans is content to
reexamine the narrow and marginal disputes that shape constitutional law.
above concern is partly related to the persuasiveness of Evans' pluralist
theory more broadly. Her pluralism is not only normative but also extends to
her analysis of how American politics works. When considering the
legislative process, she generally paints a fairly majoritarian picture in
which only the largest and most popular religions are represented and
considered. When considering the judiciary, however, she emphasizes the
coalitional nature of American politics. In that context, she places little
normative significance on the products of elections and legislatures.
Pluralism, not "democracy," is the primary normative value. Thus, judicial
intervention is readily justified, for the courts are just "more
institutions involved in a decision," providing "more persons and interests"
with "access" (p. 212). The patchwork that emerges from this process is
somehow to be taken as a positive good. Perhaps more puzzling is Evans'
rather minimal defense of her overlapping pluralism against an alternative
of diverse pluralism. Although sympathetic to Robert Cover's defense of
insular normative communities, Evans ultimately prefers that the state
aggressively penetrate communities and force individuals to embrace
conflicting values and commitments. Rather than letting a thousand flowers
bloom, Evans would prefer one big multi-colored flower. Thus, she has little
sympathy with parents who would prefer to isolate their children from the
"corruption" of the larger world or religious communities that minimize
contact with non-believers. Her model is Air Force Captain Simcha Goldman
who literally wore two hats, defining himself by both his Jewish and his
American identities. There may be reasons to prefer such a version of
pluralism, but Evans spends little time developing the argument.
provides a very nice introduction to modern free exercise doctrine. Although
her coverage and analysis are probably more extensive and in-depth than most
undergraduates need, her writing is clear, the issues are well organized,
and the analysis of cases is reliable. As a result, the book could be
readily used in courses on civil liberties or the First Amendment in
particular. Although specialists are unlikely to be persuaded by Evans'
somewhat skimpy, though occasionally provocative, normative argument, that
argument is not intrusive and the descriptive component of the book is quite
useful. I found her categorization and examination of the issues surrounding
the free exercise clause to be helpful in making sense of the Court's
massive and tangled output in this area and a good introduction to the
field. Although of less interest to historians, the book will likely be
welcomed by political scientists and constitutional lawyers teaching or
researching free exercise doctrine.
Call Number: BR516.E9 1997
Freedom of religion--United States
Church and State--United States
Citation: Keith E. Whittington . "Review of Bette Novit Evans, Interpreting
the Free Exercise of Religion: The Constitution and American Pluralism,"
H-Law, H-Net Reviews, August, 1998. URL: http://www.h-net.org/reviews/showrev.cgi?path=25930902341117.
“Evans surveys the history of free exercise activity,
expounding upon the major rationales used to defend seemingly contradictory
court rulings… This is a sophisticated treatment of the theory and legal
history of religious free exercise that confronts (and embraces) the
complexities and ambiguities of the present situation.”
Albert R. Beck, review of Interpreting the Free
Exercise of Religion: The Constitution and American Pluralism, by Bette
Novit Evans, Church History 67 (December 1998): 810-811.