Tom Berg Reviews Eisgruber and Sager's Religious Freedom and the Constitution

Can Religious Liberty Be Protected As Equality? Prof. Thomas C. Berg reviews Religious Freedom and the Constitution (Harvard, 2007) by Princeton Provost Christopher L. Eisgruber and Texas Law Dean Lawrence G. Sager in the April 2007 issue of the Texas Law Review.

Excerpt:

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), that religiously motivated practices should be exempted from generally applicable legal restrictions in order to preserve a distinctive substantive freedom for religious exercise. 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."

With Religious Freedom and the Constitution, 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." Second, there should be "a broad understanding of constitutional liberties generally": "rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish."
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Most importantly, they confront 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. To take the two cases Eisgruber and Sager first consider, why can there be a National Endowment for the Arts but not a National Endowment for Religion, and why are churches free to refuse women as clergy when other entities cannot practice sex discrimination in employment? Their answer to such questions is that every appropriate instance of special treatment for religion can be explained as "protecting persons from discrimination" or maintaining "parity, not advantage." They claim, among other things, that a nondiscrimination theory--protecting religious conduct from hostility or neglect--can generate a "robust" level of protection under the Free Exercise Clause.

The thesis of this Review, however, is that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although they reach many normatively attractive results--offering, for example, a rationale for potentially strong protection of free exercise rights--they can only do so by surrendering a primary focus on equality and nondiscrimination.

Download from SSRN or Westlaw. Citation: 85 Tex. L. Rev. 1185. Get more articles from Thomas Berg at SSRN and read his blogs at Mirror of Justice.