WRESTLING WITH GOD

 Description of Wrestling with God: The Courts’ Tortuous Treatment of Religion (Catholic University of America Press)

The relationship between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence of religion in American public life. This anxiety, in turn, leads to more litigation, as opposing parties constantly try to influence the fluctuating direction of the courts’ religion doctrines.

Courts have often treated the two religion clauses of the First Amendment as contradictory, with the free exercise clause used to protect religious practices and the establishment clause employed to limit the public expression of religious beliefs. Wrestling with God not only reconciles the relationship between the two clauses but also distinguishes them in terms of their respective purposes. Whereas the exercise clause focuses on individual freedom, the establishment clause addresses the institutional autonomy of religious organizations. Under this distinction, many cases currently falling under the establishment clause—e.g., prayer in the schools—should instead be governed by the exercise clause.

Unlike many contemporary interpretations of the establishment clause, the model offered in Wrestling with God views the clause not as a check on religion but as a protection against a specific kind of religious coercion—the kind that results from governmental interference with the freedom of religious institutions. As Patrick M. Garry skillfully argues in Wrestling with God, the establishment clause does not exist for the benefit of a secular society; it exists for those religious institutions in which individuals seek to practice their beliefs.

Reviews of Wrestling with God

“In this sound, comprehensive, and up-to-date work, Patrick Garry provokes the reader to understand how the protection of speech is given far more absolute protection than religion, even as one would expect religion to be doubly protected by both the speech and religion clauses. While this speech/religion clause comparison has been hinted at before, no one has presented it with greater clarity than Garry.”
-Douglas W. Kmiec, Caruso Chair and Professor of Constitutional Law, Pepperdine University

“Patrick Garry offers a lively and provocative critique of the Supreme Court’s approach to the establishment and free exercise clauses. He challenges the ‘wall of separation’ metaphor, rejects the endorsement test, and argues that neutrality toward religion is not enough. Broadly reinterpreting the scope of each clause, Garry advocates a sea of change in constitutional doctrine, one that would permit the government to favor religion in non-coercive ways.”
-Daniel O. Conkle, Robert H. McKinney Professor of Law, Indiana University School of Law-Bloomington

“Patrick Garry presents a valuable study of how the courts have interpreted the First Amendment religion clauses. While his case for revamping the way the courts treat religion under the Constitution is controversial, Garry articulates what many Americans believe but could never put into words due to the complexity of the subject.”
-Derek Davis, Director of the J. M. Dawson Institute of Church-State Studies, Baylor University

“Wrestling with God gives a skillful overview of religion clause jurisprudence and offers a coherent critique of the existing law. Indeed, although I have long espoused the neutrality approach to the religion clauses, the book persuaded me to reconsider and in part to revise my views.”
-George Dent, Schott-van den Eynden Professor, Case Western Reserve University School of Law

“In a well-defined presentation, Garry argues first, that though the rights to practice one’s religion and to speak freely are found in the Bill of Rights, they have been treated differently by the Supreme Court, with religious practices more readily limited than speech; and second, that the free exercise and nonestablishment clauses have been wrongly used by the court in deciding cases… Because of recent changes in the court and cases likely to come before it in the future, this is an essential purchase for seminary and law libraries; highly recommended for academic and larger public libraries.”
-Augustine Curley, Library Journal Review

Garry’s book is interesting and well-written.  It makes a valuable contribution because this area has been very confused for many years.  As the book notes, the Court uses various tests that include Jefferson’s wall metaphor, the Lemon test, the neutrality test and the endorsement test.  None of these tests have proven satisfactory.  Wrestling With God is valuable because it offers a new approach that is radically different than existing approaches and arguably more consistent with the Framers’ intentions.
-Russell Weaver, Professor of Law and Distinguished University Scholar, Louis D. Brandeis School of Law, University of Louisville

“If you’ve ever wondered why ‘free exercise’ of religion has been taking such a beating at the hands of the courts for the past half century, read this book…Patrick Garry…lucidly explains how the courts have warped the First Amendment through their interpretations of its two religious clauses… He offers a positive theory of the First Amendment that recognizes the Constitution as protective of religious freedom in practice.  While the work of a legal scholar, Wrestling With God is a brisk read.  Anyone interested in the state of church-state relations ought to have a look.”
-John M. Grondelski, National Catholic Register

“Every now and then, I read a book I wish I had written. Such a book is Patrick M. Garry’s Wrestling with God: The Courts’ Tortous Treatment of Religion. For those interested in how the courts have twisted the First Amendment’s guarantee of religious liberty into an unseemly mess, this is the book to buy. Garry offers a masterful account of the attenuation of religious liberty by a series of inconsistent and poorly reasoned decisions.”
–Catalyst: Journal of the Catholic League for Religious Freedom and Civil Rights

Wrestling With God is “strongly and convincingly written,” a “refreshing and important consideration” of the law governing church-state relations. “What Professor Garry attempts to do – and succeeds in doing brilliantly – is to provide a history of judicial developments in the area of church and state over the last half-century.”
-Professor Charles J. Reid, Jr., University of St. Thomas School of Law

“Garry’s book offers constructive insights about how we ought to move forward in this contentious area of the law.”
-Richard S. Myers, Catholic Social Science Review (Vol. 13)

“Garry untangles the Court’s church-state doctrines and proposes clearly and efficiently a bold, simple understanding of the Religion Clause.”
-Professor Richard Garnett, First Things

“This is a passionate attack on the idea of a wall of separation between church and state. Contrary to contemporary Supreme Court interpretation, Garry sees both of the religion clauses as supporting freedom of religion and giving religion a special status in American public life. Although acknowledging that the Untied States has become the most religiously diverse nation in the world and that religion carries the potential for social divisiveness, he thinks that the muting of religion in order to achieve cultural tranquility inhibits the vibrancy of religious freedom.”
– Choice

Wrestling With God is a “brilliant and comprehensive book.”
-John W. Howard, Family Security Matters

“In Wrestling with God, Garry offers a contribution to ongoing debate surrounding the religious clauses and integrates the logical tensions, historical record, and one potential nonpreferentialist solution to the interpretative problem.True to its title, Wrestling with God begins by outlining the numerous tensions between the religious clauses of the First Amendment and other constitutional and jurisprudential doctrines. Other commentators have discussed the tensions within the First Amendment and beyond. Garry, however, offers comprehensive treatment of the myriad tensions: the tension between the Establishment Clause and protection of freedom of speech; the tension between the establishment clause and the wall of separation metaphor; the tension between the Establishment Clause and history; the tension between the Establishment Clause and the exercise clause; and the tension between the cultural and legal community over the place of religion in society.”
–Rutgers Journal of Law and Religion

“No one has done a better job of understanding the way the courts have framed free speech and religious liberty issues than Patrick Garry. His presentation of the forced tension between religious liberty and the establishment provision in the First Amendment is equally masterful. This is a book that should enjoy wide appeal.”
-William A. Donohue, President, Catholic League for Religious and Civil Rights

Garry’s book is a valuable read, even for observers like me who disagree with many of his premises.
-Prof. Brian Fair, Journal of Law and Religion

Patrick Garry’s Wrestling with God: The Courts’ Tortuous Treatment of Religion will be a breath of fresh — indeed clear — air to readers frustrated by what Garry calls the “convoluted maze”  of doctrines with which with the courts attempt to answer a central question about our identity as a people: What role should religion play in our shared social life?  Garry is an advocate, calling for something he calls “non-preferential favoritism”  of religion as an alternative to the increasingly dominant approach of neutrality, an approach that necessarily ignores the special role that religion plays in a culture.  His advocacy, however, never gets in the way of his honest attempt to take his readers carefully through that “convoluted maze” and the myriad of cases that created it.  This is a book written with a wide array of audiences in mind.  There is something here for everyone, the simply curious as well as the seasoned legal explorer.  I hope it will be widely read and seriously considered.
—Jack L. Sammons, Griffin B. Bell Professor of Law,  Mercer University School of Law

“Few have ever quarreled with Chief Justice Burger’s memorable observation in 1971 that “[c]andor compels acknowledgement … that we can only dimly perceive the lines of demarcation in [the] extraordinarily sensitive area of constitution law” that marks the Establishment Clause boundary. Professor Garry offers a searching, well-written examination of that struggle at the high court in his Wrestling with God: The Courts’ Tortuous Treatment of Religion book. Never shrill, always thoughtfully pressed, Professor Garry’s scholarship argues that the Supreme Court’s Establishment Clause jurisprudence begins from a flawed premise (Jefferson’s “wall of separation” metaphor), follows an unhelpfully tortured path through Lemon’s tripartite test and its subsequent endorsement modification, and ultimately fails to embrace the one constitutional focus he finds most coherent and defensible – that the Establishment Clause permits non-coercive, non-preferentialist governmental support of religion. However they may personally judge the substantive merits of Professor Garry’s advocacy, readers are likely to enjoy this Religion Clause scholar’s crisp prose, articulate reasoning, and sincere conviction. This book represents a nice contribution to the field.”
-William M. Janssen, Charleston Law School

Professor Garry has written a thorough, comprehensive and well-researched book on the Court’s Establishment Clause decisions.”
-Professor Michael Finch, Stetson University College of Law

“Wrestling With God is one of the best books about the checkered jurisprudence of the Establishment Clause.”
-Sanford Thatcher, Penn State University Press

Patrick Garry’s fine book, Wrestling with God, ably shows that the First Amendment’s religion clauses are meant to, first and foremost, robustly protect religious liberty.  Garry cuts through the thicket of the Supreme Court’s Establishment Clause “jurisprudence of minutiae” to demonstrate that the Court has gone out of its way to encourage an American civil society bereft of the leavening power of religious belief and good works.  Garry shows that the Court has been quick to demand neutrality between the religious and secular spheres without properly accounting for religion’s pervasive importance to the American polity.  In the end, Garry incisively demonstrates that the Court’s current preference for sterilizing religious expression through the Establishment Clause is not what the Founders intended when they framed the First Amendment, and that the Establishment Clause should be subordinate to, indeed in service to, the values of the Free Exercise Clause.
-Professor Jeffrey B. Hammond, Faulkner University, Thomas Goode Jones School of Law

Listed as a recommended resource by the International Consortium for Law and Religion Studies.

Recommended as a “Book For Understanding The US Supreme Court” by Booksforunderstanding.org

Cited in US Supreme Court Brief Submitted by Members of Congress in Greece v. Gall0way.

Cited and discussed in Religion and Law (CQ Researcher, 2014)

Cited and quoted in 1/5/16 BCN article about Justice Scalia’s First Amendment jurisprudence.