Academic journal article Texas Law Review

How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses?

Academic journal article Texas Law Review

How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses?

Article excerpt

How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses? 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.

I. Introduction

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution,1 I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause,2 and a second volume on the Establishment Clause is in the pipeline toward publication,3 I do not here present my own positive views (though I provide references for interested readers). Those views might be capsulized as a broad defense of the Supreme Court's traditional "no hindrance-no aid" approach to the Free Exercise and Establishment Clauses-a defense that rejects a fair amount of what the Court has actually decided but also rejects the idea that some simplifying conceptual approach can best guide adjudication in this sensitive domain. Thus, although I believe we can learn much from the three approaches I discuss here, I resist claims that any of them would alone produce just decisions about the legal treatment of religion in the United States.

Before I undertake my main effort, I do want to offer a few "review" comments. Religious Freedom and the Constitution is beautifully written and consistently interesting. Building on earlier articles by Eisgruber and Sager,4 and on constitutional threads of equality, it offers the most detailed and sophisticated argument for treating religious claims similarly with analogous nonreligious claims. One of the joys of the book for any serious student of the Religion Clauses is its conscientious attempt to address objections to its central thesis. In this respect, the authors fulfill what I believe is a responsibility of careful scholars. Although I shall suggest that they are not always fully successful in facing and meeting criticisms, nevertheless their efforts are a model for others who wish to engage intellectual opponents.

This Essay appraises three comprehensive approaches to Religious Clause principles: (1) that, as Eisgruber and Sager contend, governments should respect Equal Liberty-comprised of principles of nondiscrimination, nonpreferentialism, and broad liberty; (2) that governments should avoid influencing choices about religion insofar as possible; and (3) that governments should be relatively free to engage in symbolic displays but should observe a strict institutional separation from religious organizations. Each of these approaches, proposed by prominent scholars of the Religion Clauses, deserves careful consideration. It is partly by identifying some strengths and weaknesses of these approaches that we can evaluate the efforts, sometimes stumbling, of the Supreme Court over the years. I shall treat the Eisgruber and Sager approach last and most extensively; it seems to me the most appealing outright competitor to the more eclectic approach I support.

II. No Influence or Substantive Neutrality

One approach to the Religion Clauses is that the government should aim to influence choices about religion as little as possible. Judge Michael McConnell has written that the government should aim for a "hypothetical world in which individuals make decisions about religion on the basis of their own religious conscience, without the influence of government."5 Douglas Laycock has urged that "religion is to be left as wholly to private choices as anything can be. It should proceed as unaffected by government as possible."6 The basic idea that government should not interfere with religious choices is attractive, and it could, depending on context, justify both particular exemptions and particular disabilities for religion. …

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