Academic journal article Texas Law Review

The Limits of Equal Liberty as a Theory of Religious Freedom

Academic journal article Texas Law Review

The Limits of Equal Liberty as a Theory of Religious Freedom

Article excerpt

The Limits of Equal Liberty as a Theory of Religious Freedom 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.

Ever since Chris Eisgruber and Larry Sager began their joint foray into the jurisprudential controversy over religious freedom,1 American church-state scholars have been waiting for the publication of their full thesis on the subject. The results on display in Religious Freedom and the Constitution2 (Religious Freedom) amply justify the thirteen-year wait. The authors unpack a marvelously rich and comprehensive theory of the Religion Clauses and the relationship between those Clauses and the rest of the Constitution. The challenges they throw down to other leading theorists, the singularly coherent thread of their argument, and the beautifully textured quality of its presentation promise to influence the debate in this unruly field for years to come.

Unlike a number of other recent entries into the church-state field, Religious Freedom is not about history,3 and it barely touches on the role of religion in politics.4 This book is about law. The authors begin by forcefully pushing aside conventional notions of church-state separation as a basis for adequate legal principles. Church and state are not, and cannot be, entirely separate. Religious institutions and religious people depend upon the state for the common protections, opportunities, and obligations of our collective experience.5 These include, among others, police and fire protection; the instruments of banking, incorporation, and contract; and duties to respect the persons and property of others. All separationist theories, Religious Freedom argues, must acknowledge these thoroughly nonseparate features of our common life, and so are reduced to impossible questions of kind and degree. How much and what kind of aid to religion are impermissible "establishments"?6 How much and what kind of regulation of religiously motivated acts are unconstitutional prohibitions of "free exercise"?7

Moreover, Religious Freedom asserts, separationism demands persistent and unjustifiable discriminations, both for and against religion. On the regulatory side, separationism suggests immunities from regulation for religiously motivated actors, but not for morally equivalent actors with motivations that are equally deep but happen to be secular.8 On the benefits side, separationism begets unique disabilities for religious institutions, which are cut off by constitutional doctrine from funding and other opportunities available to their secular counterparts.9 Unless religious communities are constitutionally destined to be thoroughly isolated enclaves, excluded from both common rights and responsibilities, the hard line model of strong separation is difficult to swallow.10

The authors of Religious Freedom frame their own approach with a panoramic concern-will our Constitution permit us to find and follow "fair terms of cooperation for a religiously diverse people?"11 The authors immediately identify their two basic principles, conjoined under the label "Equal Liberty" and designed to lead to such fair terms. First, "no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects."12 Second, all members of the political community have a general set of liberty rights, including freedom of speech, personal autonomy, associational freedom, and private property, which allow a broad range of religious beliefs to flourish.13

On first encounter, the two basic principles of "Equal Liberty" seem to carry stronger resonances of the political philosophy of John Rawls than of traditional concerns about the free exercise or nonestablishment of religion.14 The first principle averts to "spiritual foundations," akin to Rawls's "comprehensive doctrines,"15 both of which are designed to sweep in as broad as possible a variety of core human commitments, whether or not understandable in theological terms. …

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