Eisgruber, Christopher, and Sager, Lawrence. Religious Freedom and the Constitution.

Quirk, Patrick

EISGRUBER, Christopher, and SAGER, Lawrence. Religious Freedom and the Constitution. Cambridge, Massachusetts: Harvard University Press, 2007. 333 pp. Cloth, $28.90--The authors have drafted a scholarly roadmap through the narrow streets of the Establishment Clause of the US Constitution. Taking up the compass of Equal Liberty, they claim to have found a sensible way around the vexing 'wall of separation' concept, which has made merry with lawyers' minds these past years. The authors argue that Equal Liberty is in sharp disagreement with the 'separation-based' solution to religious conflicts, and point out that 'separation' is truly an odd idea given all that Churches and their members are even now permitted to undertake: buy and sell property, run schools, and generally enjoy the fruits and freedoms of private laws that are passed and maintained by the state. Separation, they say, is a deficient metaphor, even self-contradictory. So too is special legal 'immunity' for religiously motivated conduct. Both, they argue, should be rejected.

In scholarly style, the authors then pose a question very different from the separation-inspired one: they ask how government should treat persons with religious commitment, rather than how it should behave toward religion in general. They attribute no special charm to the phrase 'Equal Liberty' per se, and put to one side the historical fact that it was used by founding-era disestablishmentarians. Instead, they build their thesis on two strands of Supreme Court case law. First, the cases that recognize personal autonomy against an overreaching state. And second, a 'free association' principle, the clearest recent example of which would be the year 2000 Boys Scouts of America ruling. Some historical and textual objections are then disposed of before the book really gets underway in chapter three--The Exemptions Puzzle. This phase of the work begins an engaging journey through real-world examples of problems in religious liberty. Dress codes, zoning issues, medical care cases and even prison diets are explored.

In the case of zoning laws, for example, the authors conclude that 'religious liberty' is not composed of a bare right to benefit from the orderly neighborhoods produced by such laws, and then to escape such laws when they place restrictions on one's 'religious undertakings'. Rather, under the reign of Equal Liberty, participation will be offered on 'fair terms' that guarantee 'having one's religious needs accommodated on the same terms as comparably serious religious and nonreligious needs.' In the authors' view, the comparison seems to boil down to the issue of whether government, 'in coordinating diverse projects, is sharing burdens fairly among them.'

Chapter four is cleverly titled Ten Commandments, Three Plastic Reindeer, and One Nation... Indivisible. This is a reference to the annoyingly trivial, yet highly symbolic 'display cases' and provides entree to an exposition of four structural features of religion against which public endorsement must be understood. According to the authors, religions are generally comprehensive in outlook, distinct in structure, ritualistic, and categorical as far as membership/consequences of non-membership are concerned. When religions are understood in this way, so the argument goes, one can see the importance of public endorsements and the dangers in valorizing some beliefs and not others. Personal reaction is not a good guide here (it leads to a 'tyranny of the squeamish') and so the suggested solution is to focus on whether the 'social meaning' of the religious display will be 'more or less the same as the meaning of the object displayed.' Fra Angelico paints again, but more as a great artist than as Il Beato.

The real question for this book is whether it will aid the courts in brokering peace in the culture wars. Eisgruber and Sager note that Justice Breyer offered a small olive branch in his judgment in Van Orden v. Perry (the Texas Ten Commandments case) when he pointed out that ordering the State of Texas to remove its monument might only encourage First Amendment disputation, rather than calming it. The authors boldly query whether Justice Breyer actually went far enough in this suggestion and wonder aloud if 'the court can cool tempers in America's debates about religion only if it gives the government much broader freedom to sponsor and exhibit religious symbols.' This is not an argument that one hears often in the salons of academia.

The chapter on God in the Classroom tracks its way through the issues of school prayer, curriculum, the Bible, evolution and intelligent design. The authors' approach to the latter would perhaps benefit by making reference to Cardinal Christoph Schonborn's July 2005 op-ed page article in the New York Times which points out the dangers of evolutionism (as opposed to evolution).

The work of these two formidable constitutional scholars concludes with chapters on the use of public money for religious programs, and some ideas on legislative responsibility for religious freedom. Their discussion of the Religious Freedom Restoration Act (RFRA) argues that the legislature overreached by promoting not equality, but special legal privileges for religious groups. Hopefully the response to this carefully crafted book will not be as rhetorical as it was in the aftermath of the Supreme Court's Boerne decision to strike down RFRA's limitations on state and local action.--Patrick Quirk, Ave Maria School of Law.