Religious Freedom and the Constitution
by Christopher L. Eisgruber and Lawrence G. Sager
Harvard University Press, 352 pages, $28.95

These might seem depressing days for our public conversations about religion and public life. The bookstores’ shelves are creaking with the sermons of smug eminences purporting to break the spell of the “God delusion” and with banal screeds purporting to expose the dark designs of Christofascists and theocrats. We should be thankful, then, for Religious Freedom and the Constitution. Christopher Eisgruber and Lawrence Sager are serious, accomplished scholars, and they have produced a valuable, provocative book. It will, and should, help frame the debate about religious freedom under law for years to come.

The question they face is this: Is religion special? Under our Constitution, may the government single out religion for special treatment? In recent years, the argument that the state not only may but must be neutral toward religious expression, institutions, and religiously motivated conduct has enjoyed significant success in legislatures and courtrooms. It is increasingly accepted that, in Eugene Volokh’s phrase, equal treatment of religion is not an unconstitutional establishment of religion. Eisgruber and Sager similarly propose an approach to the First Amendment’s Religion Clause that emphasizes equality over distinctiveness. The question their book invites, however, is whether equality is really enough.

The claims that America is divided and that religion is responsible for much of that division shape a great deal of what is said and written today about faith, politics, law, and culture. Justice David Souter, for example, observed in one of the Supreme Court’s recent Ten Commandments cases that “we are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” Religious Freedom and the Constitution opens similarly, with the authors’ regret that “religion has become a charged token in a politics of division.” “Americans,” they worry, “now seem increasingly inclined to allow their religious convictions to stoke political divisions, and in turn to allow political divisions to overwhelm their commitment to religious freedom.” This book’s commendably irenic response is to “set out fair terms of cooperation for a religiously diverse people who accept the obligation to treat one another with respect as equal members of our political community.”

So how should we resolve our disagreements about “how government should treat religious practices and institutions”? Thomas Jefferson’s “wall of separation” notwithstanding, religion and government are not and can never be entirely separate in America. Faith informs politics, law shapes religion, the state constrains the church, and the church challenges the state. The right question to ask, Eisgruber and Sager insist, “is not whether the state should be permitted to affect religion or religion permitted to affect the state; the question is how they should be permitted to affect each other.”

One approach to the task is to claim that religion has “distinctive virtues that entitle it to special constitutional status.” On the one hand, this view might lead us to argue that religiously motivated conduct”using peyote during a Native American religious ritual, for example”should be exempt from an otherwise applicable prohibition on drug use, precisely because it is religious. On the other hand, this view might lead to the claim that religion is “uniquely divisive” and therefore subject to “special disabilities.” Following this approach, we might exclude parochial schools but not nonreligious private schools from a school-voucher program, or bar religious student groups but not chess clubs and neighborhood-watch associations from meeting in public school classrooms.

Each of these approaches, Eisgruber and Sager contend, is wrongheadedly separationist. Religion, in their view, is not a “constitutional anomaly requiring special and distinctive treatment.” It is not a “category of human experience that demands special benefits and/or necessitates special restrictions.” The best answer”the constitutional answer”to our church-state disputes is neither church-state separation nor religious establishment. Instead, they propose, it is “Equal Liberty.”

Under our Constitution, Eisgruber and Sager argue, religion is not special. It enjoys neither privileged nor pariah status. Accordingly, “two basic principles” guide their Equal Liberty approach. First, “no members of our political community ought to be devalued””or preferred”“on account of the spiritual foundations of their important commitments and projects.” Second, all members of the political community ought to enjoy an array of rights and freedoms that, “while neither uniquely relevant to religion nor defined in terms of religion, will allow a broad range of religious beliefs and practices to flourish.” In other words, Equal Liberty protects religious liberty because it is liberty, not because it is religious.

This “deep concern with equality””and not a special regard for or suspicion toward religion”should inform judges’ and legislators’ work. Religion should be singled out and treated differently only when it is necessary, and only to the extent necessary to secure Equal Liberty. Religiously motivated action is not constitutionally entitled to immunity from otherwise valid laws, and religious believers are not specially excused from the burdens that citizens share generally. Instead, religion is protected”and, Eisgruber and Sager believe, protected generously”as a form of liberty.

Most of Religious Freedom and the Constitution ‘s chapters are applications of the Equal Liberty approach to the usual broad array of church-state cases and controversies, from Intelligent Design in science classes to charitable-choice programs to Ten Commandments monuments. Should two Muslim police officers be exempt from a departmental ban on beards? Yes, but not because conduct motivated by religious conviction is, for that reason, constitutionally privileged or presumptively immune from government regulation. Instead, Eisgruber and Sager suggest that an exemption is warranted because, in all likelihood, other officers are exempt from the grooming rules for nonreligious reasons, and so to fail to accommodate the Muslim officers would amount to discrimination against them.

Does the Constitution permit governments to include students attending religious schools in a school-choice program? Yes, because there is no reason to regard these schools with special suspicion or disapproval. So long as the program’s eligibility criteria are neutral, and children have adequate opportunities to select nonreligious schools, the requirements of equal liberty are satisfied. May public school teachers lead children in the Pledge of Allegiance, which includes the words “under God”? Perhaps, if students are given an alternative, “secular form of commitment,” like “one nation, under law.” And so on.

As it happens, the Equal Liberty approach usually yields the same results the Supreme Court has reached using its famously jumbled mass of tests and doctrines. As Eisgruber and Sager admit, however, there are at least two kinds of cases in which it appears that unequal treatment of religion is required, both by the Court’s precedents and by our intuitions. First, there are those involving religious expression and displays of religious symbols by government officials. A public school teacher may offer a motivational or inspirational speech but not a prayer; the town council may erect a Memorial Day display but not a Nativity scene; Congress may set up the National Endowment for the Arts, but a National Endowment for Religion would raise eyebrows, to say the least.

To account for these and similar cases”cases in which, it appears, the Constitution treats religion differently from other commitments and motivations”Eisgruber and Sager argue that the “vulnerability of non-mainstream religions’ views . . . to discrimination justifies the special constitutional treatment of religion in some instances.” The reason we worry about school prayer and holiday displays is that they can have and convey a “social meaning” of “disparagement.” And so religion is treated specially in these cases, not because the Constitution disapproves religion, but because of the “vulnerability of conscience to discrimination, mistreatment, and neglect.”

The other challenge to Equal Liberty entails cases involving antidiscrimination laws and religious institutions. Almost everyone concedes that churches may engage in what would otherwise be illegal discrimination when they hire and fire clergy. Why is this? Is it because of the “separation of church and state” or the special constitutional status of religious institutions and communities? No, Eisgruber and Sager argue. Churches’ limited exemption from antidiscrimination law is not and cannot be justified as a special privilege for religion but simply as an instance of the autonomy, privacy, and “freedom of association” enjoyed by all members of the constitutional community, religious and nonreligious alike. It is a feature of liberty, and not an implication of religion’s special status, that “voluntary private associations” that provide “private relational benefits” enjoy some freedom from state interference in choosing members and leaders. Churches must be free to hire and fire ministers not so much because they are churches but because ministers often play the role of moral advisers and role models. It is the “relational” domain of guidance and friendship in general, and not so much the internal workings of churches specifically, that “the Constitution preserves for private choice.”

Equal Liberty is appealingly simple. That it can account for so many of the outcomes in so many cases is no small thing. True, as its proponents concede, it goes beyond the text of the First Amendment and is not compelled by its terms, but the same could probably be said of any proposed interpretation of the Religion Clause. Yes, Equal Liberty invites decisions about “social meaning” and “disparagement” that judges seem neither well placed nor well prepared to make. And, in many cases, it makes the constitutional validity of government policies depend on judicial speculation about legislators’ motives. All that said, Equal Liberty should be appreciated as an improvement on strict no-aid versions of church-state separation and welcomed as a powerful response to those who contend that our Constitution requires a naked public square or a civil society evacuated of religious argument and expression.

Still, Equal Liberty falls short as an account of religious freedom under law. In their eagerness to highlight and address the inevitable contacts between religion and government, and to move beyond implausible, distorted versions of church-state “separation,” Eisgruber and Sager abandon too much. That is, in recognizing that religion and public life cannot, and need not, be separate”and that religiously motivated conduct cannot, and need not, be invisible to or immune from the law”they neglect a crucial insight: Any plausible account of religious liberty must explain and protect the distinctiveness, and the institutional independence, of churches and religious institutions.

In the authors’ account, “religious liberty” is simply “liberty,” ministers are just friends, and churches are just private associations. It is because our Constitution “endorses associational freedom” and insulates from public supervision our “private” choices about “personal relationships””and not because of anything distinctive about religious institutions or the church-state nexus”that the government cannot tell, for instance, the Catholic Church that it must ordain women.

Now it is certainly worth remembering and emphasizing the structural, mediating role of voluntary associations and nonstate institutions. These “little platoons” are, in many ways, the hedgerows of civil society, the wrenches in the works of whatever hegemonizing ambitions government might be tempted to indulge. They are, as the Supreme Court has recognized, “critical buffers between the individual and the power of the State” and are, in Fr. Richard John Neuhaus’ words, “laboratories of innovation” that clear out the civic space needed to “sustain the expression of the rich pluralism of American life.” They are the scaffolding around which the civic order is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

That all this is true of religious institutions, though, should not obscure the fact that churches are more than voluntary associations and are important not merely for being private. The independence of churches from government interference in internal polity and governance is not reducible to that of the Boy Scouts or Jaycees. Indeed, it is this “freedom of the church,” and not the naked public square, that is the point of the “separation of church and state,” correctly understood. It was what was at stake at Canossa and Canterbury, and it remains a necessary element of any plausible account of religious freedom.

American judicial decisions and public conversations about religious freedom, however, tend to focus on individuals’ rights, beliefs, consciences, and practices. The distinctive freedoms of groups, associations, and institutions are often overlooked. This pattern is consistent with the widespread assumption that, because the individual religious conscience is free, religion itself is entirely private. As Religious Freedom and the Constitution illustrates, we tend to assume that the independence and autonomy of churches derive from, and exist for, the privacy and liberty interests of individual persons.

Nonetheless, an understanding of religious faith and religious freedom that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete. And so will the legal arrangements that such an understanding produces.

<span style=”font-variant: small-caps”>Richard W. Garnett</span> is a visiting professor of law at the University of Chicago.

Articles by Richard W. Garnett

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