Religion Comes First in the Bill of Rights New Book Offers Legal Principles for the Judiciary in Securing Religious Liberty and Freedom of Conscience

Article excerpt


By Jesse Choper

University of Chicago Press 198 pp., $24.95

RELIGIOUS liberty is a very popular idea in the abstract. It is only when you apply the idea to specific situations that we begin killing one another.

A similar claim could be made about Jesse Choper's "Securing Religious Liberty: Principles for Judicial Interpretation of the Religious Clauses" -- that its appeal lies in its abstractness, a lofty purpose intended to provide "a comprehensive thesis for adjudication of all significant issues that arise under the Religion Clauses of the Constitution {emphasis added}." Professor Choper begins with such grand unifying principles that the reader is disappointed to discover where it all leads.

His suggested analytical framework for deciding cases becomes complicated, confusing, and finally irrelevant as it renders results that are neither constitutionally convincing nor politically feasible.

First, the good part.

The book makes clear that the underlying premise of both the "no establishment" and "free exercise" clauses is to secure religious liberty and the protection of conscience.

The "free exercise" clause does this by guarding against unintended burdens placed on religion by laws of general application (for example, drug laws that make peyote use illegal, thereby burdening the free-exercise rights of native Americans) as well as against government actions designed to restrict religious practice. This is a welcome antidote to the Supreme Court's crimped interpretation, which only guards against laws intended to restrict religion.

The "establishment clause," Choper says, prohibits government favoritism for religion. According to Choper, no citizen should be coerced in matters of faith, nor should anyone be taxed to support religion.

So far, so good.

Choper next rebuts some of the prevailing church-state theories including that of "strict neutrality" which maintains that religion and religious people should be treated like everything and everyone else. The author understands that a church is not a McDonald's, and a yarmulke is not a baseball cap. Different rules sometimes must pertain. There are after all two religion clauses in the First Amendment. If religion is to be treated as everything else, why are they there?

Having warmed to the book's opening chapter, the reader soon discovers that things are not as promising as they sound. The author proposes a four-part thesis that though somewhat appealing in the abstract proves disappointing in its application.

The four principles are:

1. Government rarely may deliberately disadvantage religion.

2. Laws having a burdensome effect on religion may require exemptions for the faithful. …