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Religion and the American Constitutional Experiment

Fifth Edition

John Witte, Joel A. Nichols, and Richard W. Garnett

Publication Date - 27 May 2022

ISBN: 9780197587621

464 pages
6 1/8 x 9 1/4 inches

In Stock


This accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom - liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom - covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests.

Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.

New to this Edition

  • Addresses Supreme Court cases up through 2021
  • Richard W. Garnett, leading Catholic religious liberty scholar, joins as coauthor


  • A comprehensive analysis of every Supreme Court case on religious freedom from 1815-2021
  • A careful and comprehensive analysis of the 18th century texts that helped to form the original intent of the First Amendment
  • A careful delineation of six principles of American religious freedom

About the Author(s)

John Witte, Jr. is Woodruff University Professor, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. A leading scholar of legal history, human rights, and law and religion, he has published 300 articles and 40 books, in 15 languages, including The Reformation of Rights; Christianity and Human Rights; Religion and Human Rights; No Establishment of Religion; Church, State, and Family; Faith, Freedom, and Family; and The Blessings of Liberty.

Joel A. Nichols is Interim Dean and Mengler Chair in Law at the University of St. Thomas (MN). His work draws upon his degrees and expertise in both law and theology. He has published three books and more than two dozen articles, typically on the intersection of law and religion.

Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and Director of the Program on Church, State, and Society at the University of Notre Dame, where he teaches and writes about religious freedom, constitutional and criminal law, and other matters.


"This magisterial revision of Religion and the American Constitutional Experiment is an accessible and authoritative guide through the remarkable but tortuous history of America's unique approach to religious freedom. Clear without over-simplification, comprehensive without pedantry, it portrays a system that enabled the United States to become a society where members of all religions and no religion could not only live together in relative harmony but flourish." -- Mary Ann Glendon, Learned Hand Professor of Law emerita, Harvard University

"This book by John Witte and Joel Nichols is probably the best combination that exists of historical background, theoretical understanding, and legal doctrines of the religion clauses. It allows scholars, students, and other citizens to grasp the history behind the clauses without undertaking full-scale research on their own. The book is also a superb source to understand modern controversies and how courts are dealing with them." --Kent Greenawalt, University Professor, Columbia Law School

"In evenhanded and clear prose, Witte and Nichols provide a clear and comprehensive history of religious liberty in the United States. Broad in scope, updated with the latest developments, and supplemented with impressive appendices that catalog state constitutional provisions and Supreme Court decisions, this text offers cogent analysis from leading scholars of law and religion. Already a trusted and valuable classroom resource, this book will also enlighten those seeking a deeper understanding of the contours of this important topic."--Amy E. Black, Professor of Political Science, Wheaton College

"The authors provide clear description of complicated case law and public policy for students and citizens. They reveal patterns and principles on a subject often caricatured by wild generalizations and widespread confusion. Academics and experts across a range of fields and professions will appreciate their fine analysis and comprehensive scholarship. The authors refute a weak postmodernist critique of religious freedom and offer a provocative perspective on the history of liberty of conscience."--Reading Religion

"In the inevitably contentious field of church-state constitutional issues in America, it is rare to find a volume that is as accessible, thoughtful, and measured as Religion and the American Constitutional Experiment by John Witte, Jr. and Joel A. Nichols. Their remarkable ability to create order in the midst of the chaos of the ever-changing constitutional law of religious liberty makes this an ideal volume for classroom use, and this new fourth edition updates the church-state story through the US Supreme Court s 2015 decisions."--Journal of Church and State

Table of Contents

    List of Tables ix
    Preface xi


    1 The American Experiment in Historical Context
    The First Millennium
    The Papal Revolution
    The Protestant Reformation
    Religious Establishment versus Religious Freedom in Europe
    Colonization and Experimentation

    2 The Theology and Politics of the Religion Clauses
    Puritan Views
    Evangelical Views
    Enlightenment Views
    Civic Republican Views
    Summary and Conclusions

    3 The Essential Rights and Liberties of Religion
    Liberty of Conscience
    Free Exercise of Religion
    Religious Pluralism
    Religious Equality
    Separation of Church and State
    Disestablishment of Religion
    Summary and Conclusions

    4 Forging the First Amendment Religion Clauses
    Religion and the Continental Congress
    The 1787 Constitutional Convention
    Ratification and Proposed Amendments
    Drafting the First Amendment Religion Clauses
    "Original Intent": Interpreting the Final Text
    Summary and Conclusions

    5 The Free Exercise of Religion: Mapping the Doctrinal Terrain
    Bringing a Free Exercise Case
    Factual Clusters of Free Exercise Cases
    Shifting Standards of Review in Free Exercise Cases
    vi Contents

    6 First Amendment Religious Exercise, Expression, and Exemption
    Free Exercise and Polygamy (1879- 1890)
    Free Exercise and Conscientious Objection (1918- 1971)
    Freedom and Equality of Religious Expression (1940- 2015)
    Liberty of Conscience and Free Exercise Exemptions (1943- 1989)
    Summary and Conclusions

    7 The Free Exercise of Religion: Neutrality, Nondiscrimination, and Statutory Rights
    Neutralizing the Free Exercise Clause (1982- 1990)
    Neutrality and No State Discrimination Against Religion (1993- )
    Neutrality and Nondiscrimination in State Aid to Religious Education
    Neutrality and Nondiscrimination in the Time of Covid
    State Neutrality in Balancing Religious Liberty and Sexual Liberty
    Free Exercise of Religion as a Statutory Right (1993- )
    RFRA Cases in the Supreme Court
    RLUIPA Cases in the Supreme Court
    Summary and Conclusions

    8 Modern Establishment Law: Mapping the Doctrinal Terrain
    Bringing an Establishment Clause Case
    Mapping the Establishment Clause Cases
    Neutrality and the Lemon Test
    No Coercion
    Equal Treatment/ Equal Access
    History and Tradition
    Summary and Conclusions

    9 Religion and Public Education: No Establishment of Religion, But Equal Access for Religion
    Separationist Cases (1948- 2000)
    Equal Access Cases (1981- )
    Limits on Equal Access?
    Summary and Conclusions
    10 Government and Religious Education: From Accommodation to Separation to Equality
    Accommodationist Cases (1908- 1977)
    Separationist Cases (1971- 1985)
    Equal Treatment Cases (1983- 2002)
    Statutes, Free Exercise, and Equal Access Rights (2004- )
    Summary and Conclusions

    11 Religion and Public Life
    Sabbath Day Rules 282
    Legislative Chaplains and Prayers
    Religious Symbols
    Patterns and Principles
    Summary and Conclusions

    12 The Freedoms of Religious Organizations
    Religious Polity and Structures
    Religious Structures
    Legal Structures
    Religious Property Disputes
    Standard Legal Principles (1815- 1914)
    Deference (1872- 1976)
    Neutral Principles (1979- )
    Labor and Employment
    Social Services and Taxation
    Social Services
    Summary and Conclusions

    Concluding Reflections
    Signs of Trouble
    Enduring Principles, New Applications

    Appendix 1: Drafts of Federal Religion Clauses (1787- 1789)
    Appendix 2: United States Supreme Court Decisions Relating to Religious Liberty (1815- 2021)

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