49 Pages Posted: 21 Feb 2007
This essay reviews Christopher Eisgruber and Lawrence Sager, Religious Freedom and the Constitution (Harvard, 2006). Eisgruber and Sager are the most sophisticated proponents of an approach to the Religion Clauses that emphasizes equality and nondiscrimination as opposed to any distinctive substantive liberty or autonomy in religious matters. They began a dozen years ago with arguments that the Religious Freedom Restoration Act (RFRA) and the exemptions for religious exercise it generates violated a constitutional mandate of "equal regard" between religious and deep nonreligious motives for action. The book applies their full-blown theory, Equal Liberty, to the full range of Religion Clause questions. The book is commendable because, among other things, it confronts the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern - one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality.
This essay argues, however, that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although their theory generates many normatively attractive results - offering, for example, a rationale for potentially strong protection of free exercise rights - they can only generate them by surrendering a focus on equality and nondiscrimination. I first argue that Eisgruber and Sager cannot give religious liberty the robust protection they claim without giving it more protection than some deeply felt nonreligious reasons for acting, and without showing some special concern for religious autonomy. I next turn to the special limits that Eisgruber and Sager reaffirm on government assistance to religion - especially government expression of religious sentiments - and conclude that Eisgruber and Sager cannot defend these special Establishment Clause limits and still object to giving exemptions to religious exercise but not secular beliefs. Finally, I discuss the primary alternative to an equality-based theory - the principle that government should respect and promote the choices of individuals and groups in religious matters - and present a brief case for it, both affirmatively and in response to Eisgruber and Sager's criticisms.
Keywords: Religious liberty, Religion Clauses, Religious equality, Free Exercise Clause, Establishment Clause
Suggested Citation: Suggested Citation
Berg, Thomas C., Can Religious Liberty Be Protected as Equality?. Texas Law Review, Vol. 85, No. 5, April 2007; University of St. Thomas Legal Studies Research Paper No. 07-04. Available at SSRN: https://ssrn.com/abstract=964340