Academic journal article Texas Law Review

Can Religious Liberty Be Protected as Equality?

Academic journal article Texas Law Review

Can Religious Liberty Be Protected as Equality?

Article excerpt

Can Religious Liberty Be Protected as Equality? RELIGIOUS FREEDOM AND THE CONSTITUTION. By Christopher L. Eisgruber[dagger] and Lawrence G. Sager.[double dagger] Cambridge, MA: Harvard University Press, 2007. Pp. 333. $28.95.

Among the central questions concerning the First Amendment's Religion Clauses is whether their fundamental goal is nondiscrimination or a substantive liberty. Do they primarily require that government not engage in discrimination among religions or between religious and nonreligious ideas? Or do they primarily guarantee decisions about religious matters and religious life a zone of liberty or autonomy against state restriction, or a degree of separation from state involvement?

The two approaches, nondiscrimination versus substantive liberty or autonomy, overlap and sometimes produce similar results, as for example when free speech rights protect the freedom of religious and nonreligious expression equally broadly.1 Often we do not have to choose between the approaches. But in their pure forms, nondiscrimination and substantive autonomy will necessarily produce some divergent results in a society, such as ours, where government is extensive and involved in many aspects of life. When government regulates society extensively, allowing it to regulate religion equally extensively will clash with people's ability and right to exercise religion freely. On the other side, because federal, state, and local governments promote a variety of moral ideals they favor - through legislation, tax-supported spending, state-operated schools, and other means - to allow them similarly to promote their favored religious ideas would involve them deeply in religious matters, in ways that have been thought to violate the prohibition on establishments of religion.

Supreme Court decisions and commentators can be found to support both nondiscrimination and substantive autonomy.2 Many observers see the Court's emphasis changing in the last twenty-five years from church-state separation to equal treatment between religion and nonreligion, with some significant remaining elements of separationism.3 Some endorse a hybrid of approaches.4 Separationism is not the only competitor to equality: other commentators, most prominently Douglas Laycock and Michael McConnell (and including myself), argue that the fundamental value is for government to respect, and as much as possible to avoid influencing, private choices in matters of religion.5 Again, these views sometimes overlap and point to the same results, but other times they diverge.

Christopher Eisgruber and Lawrence Sager are the most sophisticated proponents of an equality or nondiscrimination approach to the Religion Clauses. They began a dozen years ago with attacks on the idea, embodied in the Religious Freedom Restoration Act of 1993 (RFRA),6 that religiously motivated practices should be exempted from generally applicable legal restrictions in order to preserve a distinctive substantive freedom for religious exercise.7 They argued that showing special concern for freedom of religious practice "privileged" religion over deep nonreligious motives for action-violating a constitutional mandate of "equal regard" for such views-and that exempting religious conduct from restrictive laws was permissible only to protect religion from "hostility or indifference" compared with other "deep concerns of citizens."8

With Religious Freedom and the Constitution,9 Eisgruber and Sager expand their approach to the full range of Religion Clause questions: free exercise exemptions, government-sponsored prayers and religious displays, and inclusion of religious entities in government funding programs. Their theory, "Equal Liberty," has two components. First, "in the name of equality," no persons "ought to be devalued on account of the spiritual foundations of their important commitments and projects"; beyond these concerns with "discrimination" or "hostility and neglect," religion should not be treated "as deserving special benefits or as subject to special disabilities. …

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