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Reviews of Books and Films
literature, drawing on the research of others. As a
result, most of his historical sections cover well-cultivated ground, although he places other historians'
narratives in a broader context.
This book would have benefited from editing more
careful to focus his broad agenda and sharpen some of
his points, which sometimes seem to repeat themselves. It might have also caught several strange
phrases that interrupt the flow and mar the richness of
Schultze's argument.
DANIEL SACK
Associated Colleges of the Midwest
STEVEN P. BROWN. Trumping Religion: The New Christian Right, the Free Speech Clause, and the Courts.
Tuscaloosa: University of Alabama Press. 2003. Pp.
viii, 187. $35.00.
Sometime in the late 1980s, the way in which major
Establishment Clause litigation was conducted before
the Supreme Court underwent a major change. Since
the late 1940s, litigation challenging religious practices
in the public schools had focused on the core strategic
principle that government could not sponsor, endorse,
or otherwise align itself with religion. It did not matter
whether consensus prevailed in the public schools
over, for example, the desirability of prayer or Bible
reading, or whether a school sponsored other student
clubs that focused on political, social, or community
topics. All that mattered was whether a school board,
school administrator, teacher or, in some cases, student attempted to promote religion on school grounds
and on school time. Leading the charge against these
time-honored practices were such groups as the American Jewish Congress and the American Civil Liberties
Union, which regularly challenged religious practices
in the public schools and, for the better part of a
forty-year stretch between 1945 and 1985, almost
always won.
By the late 1980s, the separationist impulses that
once animated the Establishment Clause decisions of
the Supreme Court began to recede. Moreover, a
litigation environment once dominated by separationist organizations began to take on a much more plural
and confrontational character. Groups such as the
United States Catholic Conference, which had been
active in Establishment Clause litigation for several
decades, and the Christian Legal Society, which had
begun to establish a litigation presence in the late
1970s, were now joined by a loose federation of groups
associated with what political scientists often call the
New Christian Right, which rose to political power
after the election of Ronald Reagan as president of the
United States in 1980. Determined to meet the liberal,
separationist groups head-on at the intersection of law
and politics, these groups began to challenge many of
the Court's key decisions limiting religious practices in
the public schools and government funding for parochial schools. Over the last decade or so, a conserva-
AMERICAN HISTORICAL REVIEW
tive religious bar has emerged and become a major
force in the politics of Establishment Clause litigation.
Steven P. Brown provides the first full scholarly
account of this extraordinarily important development.
Brown offers a comprehensive description of the network of organizations that make up the legal arm of
the New Christian Right and their rise to power and
influence. He also offers excellent background on the
individual lawyers, such as Jay Sekulow, who have
assumed a prominent role in identifying and directing
important cases. But even more important than
Brown's account of this phenomenon is his discussion
and analysis of the legal strategy the New Christian
Right groups chose to advance their goal of allowing
government to sponsor, even if indirectly, the religious
preferences of the majority. Beginning in Board of
Westside Community Schools v. Mergens (1990), in
which the Supreme Court upheld a 1984 federal law
(the Equal Access Act) requiring public schools to
permit religious clubs to meet before or after school
hours if other "non-curriculum" groups were permitted such privileges, New Christian Right lawyers advanced the argument that the Free Speech Clause, not
the Establishment Clause, should control constitutional analysis. Challenging the view that the Establishment Clause placed limits on government support
for religious activities initiated by students in public
schools, New Christian Right lawyers framed the debate as one involving free speech. If secular groups had
the right to meet in public schools, then religious
groups should have the same rights. Viewing it any
other way amounted to religious discrimination.
The Court has taken this view and run with it.
Although it has continued to hold the line against
state-sponsored prayer in public schools, the Court has
ruled that the Free Speech Clause requires public
schools to accommodate meeting requests of nonschool-based community groups and prohibits public
universities from denying funding to religious publications if other student organizations are eligible for
student subsidies. In addition to these cases involving
religious practices, the Court has also issued several
rulings (see, for example, Zelman v. Simmons-Harris
[2003]; Mitchell v. Helms [2000]; and Agostini v. Felton
[1997]) broadening the ability of religious schools to
receive government funding. The rationale in all these
cases has been conceptually identical to the equal
access cases: to deny religious schools benefits available to secular schools amounts to discrimination. New
Christian Right groups have been active participants in
all these cases, whether as sponsors of litigation or as
amicus curiae.
Anyone looking for a comprehensive, scholarly, yet
accessible discussion of how and why the New Christian Right has changed the context and direction of
Establishment Clause litigation in the last fifteen years
will find this book a superb road map.
GREGG IVERS
American University
OCTOBER 2004