San Diego Law Review
DeGirolami here reviews a book by Professor Marci A. Hamilton, God vs. The Gavel: Religion and the Rule of Law (Cambridge Univ. Press 2005). This review ultimately critiques Hamilton's notion of "the public good", first explicating the structure and theory of the book. Hamilton was counsel for religious accommodation cases dealing with horrific child abuse and neglect with subsequent failure to act by religious institutions. From these cases she forms in her book the theory that the phrase "free exercise" in the U.S. Constitution does not give constitutional protection for religious exercise in the public square at all, because she would like civil liability to apply to religious institutions. Hamilton is tapping into a historic difference between congress and the Supreme Court, which the Supreme Court attempted to settled with two cases which she worked on, Smith and Boerne in which the court interpreted the constitution in favor of her view. DeGirolami explicates Hamilton's theory as stating that the public good is served by eliminating constitutional protection for religious expression. Hamilton's notion of the public good, DeGirolami hypothesizes, wavers in its definition and takes the place of the author's own policy proposals. Hamilton's own notion of the public good is contravened by her statement that any thought with religious antecedents cannot be reasoned for in the public square. DeGirolami finds that various intellectual traditions benefit the public good despite their relation to religious precedents. He further posits that Hamilton's view that religious interests should be protected by the government on a case by case basis if they have strictly secular worth is too large a project for the legislature to take up.
Marc O. DeGirolami,
Recoiling from Religion,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol43/iss3/6