Securing Religious Liberty:
Principles for Judicial Interpretation of the Religion Clauses
By Jesse H. Choper
University of Chicago Press, 198 pages, $24.95
The author, one of the nation’s major constitutional scholars, has made an offer to the Supreme Court which he thinks it can’t refuse—or at least shouldn’t. It is a set of four principles, elaborately stated, that he calls “a comprehensive thesis for adjudication of all significant issues that arise under the Religion Clauses of the Constitution.” An immodest claim? Hardly. No one can look at the confusing mass of inventions heaped upon those clauses by the Supreme Court over the past half century and not applaud Professor Choper’s sedulous effort to straighten things out and to devise rational guidelines for future adjudication.
Initially, the book is useful simply as an overview of the corpus of our religious liberty jurisprudence. Every important decision of the Supreme Court in that field is at least touched upon. That should be of value to those unacquainted with the field, including judges facing a Religion Clause case for the first time. For all judges, Choper’s four principles constitute a virtual code, a sort of check-off list, by which cases are to be decided. Here, for example, is his second principle, the “Burdensome Effect Principle”:
If government regulations of conduct that are generally applicable and enacted for secular/neutral purposes (i.e., without intent to provide an advantage to religious interests or prejudice individuals because of their religious beliefs) conflict with action or inaction pursuant to the tenets of a particular religion, the Free Exercise Clause should be held to require an exemption under the following circumstances: the claimant has suffered cognizable injury; the exemption does not violate the Establishment Clause; the exemption does not require the government to abandon its entire regulatory program; the individual’s beliefs are sincerely held; violation of those beliefs entails extratemporal consequences; an alternative burden is imposed if one exists that does not conflict with the religious objector’s beliefs; and the government cannot demonstrate that denial of the exemption is necessary to a compelling interest.
“Byzantine!” you exclaim. But that text merely shows how complex Religion Clause questions can be when they are deeply and sincerely pondered. This, and Choper’s three other principles, are well worth pondering, but to me the chief value of Securing Religious Liberty lies in the exegesis he provides for each of them. In the short space of this review, I can only point to conclusions on some highly important and timely issues that result, in this book, from Choper’s interpretations of his own interpretations.
Governmental financial aid that may benefit religious interests, Choper holds, violates the Establishment Clause unless it has “an independent secular impact” and poses no “meaningful danger to religious liberty.” What is surprising here is the author’s apparent view that aid to individuals in religious institutions is perforce aid to the institutions. Thus he says that the GI Bill of Rights violated his “independent secular impact” principle and that voucher programs would, too. So he ignores the latest and best teaching of the Supreme Court in the 1986 Witters (aid to blind student) and 1993 Zobrest (aid to deaf child) cases that an individual, not a sectarian school, may be the real beneficiary of the aid, and that, therefore, no Establishment Clause problem arises.
Yet, surprisingly, Choper does hold that such a school may be directly aided. Recognizing as he does that the typical religious school serves both sacred and secular ends, all he finds needed is a way to measure the aid so that the public funds will be used solely for the latter ends. He explores various ways for allocating the aid. He rejects the idea that standardized test results will prove the amount of secular knowledge the child in a religious school receives. He says, instead, “using time spent (on instruction in secular subject matter) is the basic criterion.” His rejection of standardized tests (e.g., the Stanford Achievement Test) is as puzzling as his acceptance of digital computation of secular versus religious instructional content. Choper recognizes the important role of the religious school but seems influenced by the literature of leading church-state separationists of the 1960s, with their lurid caricatures of the permeating religiosity of Catholic schools. His heeding of that literature causes him to miss the big point of the 1990s: that new constitutional scholarship sustains the growing number of parents who find their rights affronted by absolutist views of church-state separation that would bar them from economic freedom of educational choice.
On religious liberty generally, however, Choper attacks the Supreme Court’s 1990 decision in the Smith case, which held that government can injure religious interests so long as its action is “religiously neutral” and of “general application.” Choper rightly says this rule permits “government intrusion into too wide a range of areas of religious life.” He therefore strongly endorses the 1993 Religious Freedom Restoration Act, which effectively overrules Smith, but warns that the Act affords only “temporary protection” for religious liberty and is subject to elimination at any time by Congress. But it is fully possible that its elimination may instead take place at the hands of the Supreme Court. In March 1995 a federal district court in Texas held the RFRA as lying outside the constitutional power of Congress to enact. Echoing across the centuries in the court’s opinion was the statement of Chief Justice John Marshall in 1803 that “It is especially the province of the judicial department [not the Congress] to say what the law is.” Choper had completed his book just prior to the Texas federal court’s decision.
Good, too, are Choper’s trenchant criticisms of absurdities solemnly expressed as constitutional doctrine by various members of the Court in the past. He attacks, for example, the declaration of the Supreme Court in the Lemon case that political division along religious lines is an evil against which the First Amendment was designed to protect us. Again, he takes apart, as patently unreasonable, the view of Justice O’Connor that violations of the Establishment Clause should depend upon whether a mythical “reasonable observer” would perceive particular governmental action as an endorsement of religion.
If Choper were on the Supreme Court today, his four “principles” would find him in conflict with some major prior decisions of the Court. He says that “the existing state of governing legal standards is both greatly in flux and riddled with major defects and inconsistencies.” So bad is this condition that he would see the principle of stare decisis, imposed in the religion field, as damaging to the good of our society. Choper would also find unconstitutional public school programs allowing children to attend religious instruction off the public school premises. He would allow posting, at private expense, of the Ten Commandments in public school classrooms and the teaching, in those classrooms, of creation science if based on a fair and balanced presentation of the scientific evidence. He would see no violation of the Constitution in allowance of an opportunity for public school children to engage in silent prayers. Justice Choper would find no offense to the Constitution in public displays by private groups of menorahs and creches on religious holidays. He would have difficulty with the tax exemption of church properties but would hope that his principle of general restriction on financial assistance to religion is “flexible enough” to allow such exemption.
What about that all-important question of the definition of “religion,” as used in the First Amendment? Oddly, Choper considers the manifestation of nonbelief to be protected by the Religion Clause, though he acknowledges that it is already thoroughly protected by the First Amendment’s protection of speech, press, assembly, and petition. He is sensitive to the dangers of governmentally imposed secularism, recognizing, at one point, that many citizens “feel that their taxes are being used to subsidize an alien dogma of secularism.” But, like many another constitutional scholar, he never really comes to grips with the implications of the Supreme Court’s 1961 Torcaso decision. There the Court held Secular Humanism (capitalization by the Court), along with Ethical Culture, to be a “religion” within the meaning of the First Amendment. And long before, in 1947, Justice Rutledge had rightly pointed out that “religion” means the same thing in the Amendment’s Establishment Clause as it does in its Free Exercise Clause. Choper, however, does not seize the opportunity to explore the important question of whether the widespread imposition in the public schools today of secular humanist programs does not offend the Establishment Clause even more markedly than would the twenty-two-word nondenominational prayer the Court struck down in 1962.
But all in all, this is a thoughtful essay on one of the most vital areas of American constitutional law.
William Bentley Ball, of the Harrisburg, Pa. law firm of Ball, Skelly, Murren., Connell has argued numerous religious freedom cases before the U. S. Supreme Court.