Council of Europe Law Towards a Pan-european Legal Area Book

“The legal issue is not whether the religious viewpoint of certain believers is internally inconsistent, or even what any one group believers holds true. The question for public policy is whether {a given practice} is consistent with what is best for society, period. {Many} public officials and representatives {confuse} a debate over belief with the debate over public policy. Both debates are welcome at the public roundtable. Only the latter property shapes the law. The government may not enter the former, but it is duty-bound to address the latter.”

This is Hamilton’s approach to all things church-state, as she drives home repeatedly. She’s clearly well-informed (she argued several of these cases in various federal courts, including the big one, after all) and no doubt an authority. At times, however, it’s difficult to know precisely what she wants us to take away from specific passages beyond “STOP LETTING PEOPLE USE RELIGION AS AN EXCUSE TO DO WHATEVER THEY WANT WITHOUT CONSEQUENCES!” – a message that comes across loud and clear, all four hundred times. It’s sometimes the only thing that’s clear, as Hamilton seems to veer between addressing any reasonably informed reader and going on extended jeremiads of the sort no doubt entertaining for (slightly inebriated) scholars or law students but a bit obfuscated for the rest of us.

That said, I learned a great deal from this insider-perspective on a number of important constitutional and legal questions confronting the nation in recent decades. Although only about 15 years old, some of the issues she tackles (gay marriage comes to mind) have changed substantially since the book was published – although the ideas Hamilton expresses are still very much relevant to the larger discussion. She’s offered some intense food for thought in terms of the importance of balancing free exercise with establishment, and not mistaking “free exercise” for “extended license” simply out of fear one might be accused of being anti-religious. Religious individuals and institutions deserve the same rights and protections as everyone else, she insists – but not necessarily more than everyone else, and not at the expense of those same rights and protections for those impacted by their actions.