Vol. 4, No. 3, 2005

God vs. the Gavel: Religion and the Rule of Law

Marci A. Hamilton

New York, NY: Cambridge University Press, 2005. ISBN: 0521853044 (hardcover), 408 pages, $28.00

Reviewed by Edward A. Lottick, M.D.

When the Religious Freedom Restoration Act (RFRA) was passed in 1993, I thought that Congress had gone bananas. As I understand it, that law made freedom of religion almost as absolute as freedom of belief. But I’m happy to report that the federal RFRA is no longer in effect due to a subsequent Supreme Court decision. Marci A. Hamilton, author of God vs. the Gavel: Religion and the Rule of Law, was a central player in that good outcome.

I first encountered Marci Hamilton one day about two years ago when, with time and a computer at my disposal, I put “brainwashing” into a search engine as I looked for information about the recently passed Italian Senate bill on brainwashing. I found more than a dozen articles by cult apologists, all damning the Italians and their bill. Among the clatter was a marked absence of any objective information about the Italian bill. But lo and behold, upon closer scrutiny, I found, amidst this uninformative posturing, an article by Marci Hamilton that advocated for a law against brainwashing.

Professor Hamilton has written many articles for FindLaw, including “The Elizabeth Smart Case: Why We Need Specific Laws Against Brainwashing.” Hamilton’s writings inspired me to include two questions about the desirability of a law against brainwashing in my 2004 survey of psychology professionals and their experience with adverse cults. The overwhelming positive response to those two questions amazed me. This past summer (2005) I read Hamilton’s recently published God vs. the Gavel: Religion and the Rule of Law. My overall impression is that her scholarly presentation of this topic will be of much interest to the cultic-studies community.

Hamilton’s book is as impressive as her biography. She clerked for Associate Justice Sandra Day O’Connor of the U.S. Supreme Court and Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit. She received her J.D., magna cum laude, from the University of Pennsylvania Law School, where she served as editor-in-chief of the University of Pennsylvania Law Review. She is a member of Phi Beta Kappa and the Order of the Coif.

Professor Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardoza School of Law, Yeshiva University. She has been a visiting scholar at Princeton Theological Seminary, the Center of Theological Inquiry, and Emory University School of Law. She is frequently asked to advise Congress and state legislators on the constitutionality of pending legislation and to consult in cases before the U.S. Supreme Court. And, of the greatest importance to us all, she represented the City of Boerne, Texas, in a successful challenge to the RFRA the case that resulted in the Court’s landmark decision in Boerne v. Flores, 507 U.S. 521 (1997), which struck down that act.

God vs. the Gavel is an articulate overview of developments regarding religion in First Amendment law. Professor Hamilton documents exactly why our knee-jerk general assumption that religion is automatically a blessing synonymous with the public good is a dangerous and unwarranted assumption. She details a number of instances of harm, and she advocates for the “no-harm principal,” wherein no person or entity can act in ways that harm others without consequence. She demonstrates that this principal was bedrock for the generation of those who framed our Constitution. She argues forcefully that religious believers who demand exemption from a law must shoulder the burden of proving that the conduct they seek to immunize is not harmful to the society and to individuals within that society. Conversely, it is not the responsibility of the opponents of an exemption to prove harm. Overall, Hamilton answers the question of whether the law should govern the conduct of religion, individuals, and institutions with a clear, resounding, and compelling “Yes!”