Vol. 10 No. 4 (May 2000) pp. 323-325.

THE AMERICANIZATION OF RELIGIOUS MINORITIES: CONFRONTING THE CONSTITUTIONAL ORDER by Eric Michael Mazur. Baltimore: The John Hopkins University Press, 1999. 196 pp.

Reviewed by Gregg Ivers, Department of Government, American University.

As I was preparing to review this book, newspaper advertisements were out in full force encouraging shoppers to take advantage of all the great deals to be had over Easter weekend. Clothes, clocks, waffle makers, diamonds, foot massagers and, yes, even lawnmowers could had for prices far below their regular prices. What sale-priced consumer durables have to do with the Last Supper and the Resurrection of Christ is a question I will leave for divinity students. However, what I always notice during that time of year and, of course, during Christmas, is that I never see advertisements reminding me that only ten shopping days remain until Chanukah, or models of young children wearing their Passover best. Not that I consider such an omission a studied one, but, all the same, it does send a continuing reminder to religious minorities of their outsider status in a culture still dominated by Christian symbols and beliefs.

Eric Michael Mazur is a religion professor, not a political scientist, but he has written a fine book that raises several interesting questions involving the relationship of religious minorities to the constitutional order. Professor Mazur's thesis is this: religious minorities, especially those that fall outside the domain of Protestant Christianity, often practice their faiths in ways that conflict with the settled understanding of the First Amendment's guarantee of religious freedom. To reconcile their tenuous position in the American religious milieu, minority religions can go it alone, modify their theology to the dominant political order, or engage in what Professor Mazur calls a strategy of sustained conflict. Professor Mazur gives greatest emphasis to the consequences for the constitutional order and for minority religions when they pursue the third approach - sustained conflict.

Using the experience of the Mormons, the Native American Church and the Jehovah's Witnesses, Mazur describes how the strategy of sustained conflict led to changes in the Supreme Court's interpretation of the right to religious free exercise and, on a different level, the willingness of society to tolerate greater degrees of religious diversity. The Jehovah's Witnesses' refusal to "give in" to established rules of the American constitutional order ultimately resulted in greater protection for their own religious practices, and the religious practices of other religious minorities. Mazur recounts how the Witnesses, particularly after the first flag salute case, MINERSVILLE SCHOOL DISTRICT v. GOBITIS (1940), were terrorized in the communities in which they lived, often to the indifference of local law enforcement. After the Court's about-face three years later in WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE (1943), the first minor cracks in the cloak of Protestant hegemony began

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to appear. Indeed, the language of Justice Robert Jackson's opinion in BARNETTE, "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard," suggested then that the Court was prepared to widen the scope of religious practices protected by the Constitution beyond those traditionally associated with Protestant Christianity. Development of free exercise principles since BARNETTE - a case, it should be noted, that rested as much upon free speech as freedom of religion principles - and the Court's treatment of the Establishment Clause in later cases demonstrated the gradual erosion of Protestant dominance over secular institutions. Mazur argues that the willingness of religious outcasts to challenge conventional thinking about the boundaries of religious freedom benefited those religious minorities less isolated from the mainstream, such as Catholics and Jews. He is absolutely correct.

In contrast, Mazur notes what happens to minority religions when they choose not to engage the constitutional order - they end up with something less than religious equality. Here, he uses Native Americans as an example, and points out how a central tenet of their religious practices, the notion of tribal sovereignty or sacred land, finds no place in the dominant constitutional order. Native Americans were conquered by European settlers and later the United States army. The introduction of a competing system of authority profoundly threatened Native American life on all levels. That the American constitutional order ultimately triumphed over Native Americans put into place a conflict that has never ceased. And, as Mazur points out, too many fundamental conflicts exist between Indian culture and how religious life is organized today for any resolution to ever take place.

The members of the Church of Jesus Christ of Latter-day Saints (LDS) took a somewhat different path towards integration into the American constitutional order. After World War II, Mazur notes, the Mormons began to question those religious practices, which left them out of the American constitutional order. Their gradual willingness to accept limitations on certain of their religious practices, such as polygamy, marked the beginning of their journey into the mainstream of American society. Early on, the Mormons attempted to establish their own competing order in hopes of flourishing independently of the mainstream, ultimately to realize over time they could do so without running afoul of the prevailing American customs, values and the law. The LDS leadership succumbed to the dominant constitutional order, a decision that forced them to give up practicing important elements of the Mormon faith in exchange for constitutional protection and access to political authority.

Mazur commands a graceful pen. His topic is subtle and complex, but he writes so well and so accessibly that newcomers to the subject will find no trouble grabbing a hold of his thesis and engaging the topic. More experienced students of religion and politics, and religion and the Constitution will find much to stimulate their thinking. Mazur had left open a topic for political scientists interested in constitutional theory to pursue, and that is the false promise of neutrality under the Religion Clauses. Neutrality is a standard that many suggest should guide the Court in how it treats religious claims, both as they fall under the Establishment Clause and the Free Exercise Clause. As Mazur points out, religion must accept the rules of the

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American constitutional order BEFORE it can reap the benefits of the First Amendment's guarantee of religious freedom. Beyond that, Christianity continues to dominate the values that shape the values between religion and society, even though Protestantism, by the early 1960s, was disestablished as the nation's unofficial state sponsored religion. The Court's decision in EMPLOYMENT DIVISION OF OREGON v. SMITH (1990), holding that religious claims were entitled to no special treatment under the Free Exercise Clause, has been detrimental to many minority religious practices, which often conflict with secular state objectives. The neutrality principle that animated the Court's decision in that case only applies to those religions that are part of the established order, or those, such as LDS, which have struck a bargain with the state. On the Establishment Clause side, the Court continues to suggest that neutrality towards religion is the best way to promote religious equality; in reality, the Court continues to move towards a standard that favors government support for religion, whether doctrinal or financial, as long as no one religion is excluded (see, for example, ZOBREST v. CATALINA FOOTHILLS (1993); ROSENBERGER v. VIRGINIA (1995); and AGOSTINI v. FELTON (1997)).

Eric Mazur has made a splendid contribution with his first book. Let's hope this talented scholar of religious studies continues to tweak the assumptions behind the way that many scholars think about the role of religion in American life, and, for political scientists, how the Constitution protects religion - and how it does not.

CASE REFERENCES:

AGOSTINI v. FELTON, 117 S. Ct. 1997 (1997).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.

S.872 (1990).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U. S. 586 (1940).

ROSENBERGER v. VIRGINIA (1995).

WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U. S. 624 (1943).

ZOBREST v. CATALINA FOOTHILLS SCHOOL DISTRICT, 509 U. S. 1 (1993).