The Limits of Equal Liberty As a Theory of Religious Freedom

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Religious Freedom and the Constitution, by Christopher L. Eisgruber and Lawrence G. Sager, is reviewed.

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The Limits of Equal Liberty As a Theory of Religious Freedom

The Limits of Equal Liberty as a Theory of Religious Freedom RELIGIOUS FREEDOM AND THE CONSTITUTION. By Christopher L. Eisgruber[dagger] and Lawrence G. Sager.[double dagger] Cambridge, MA: Harvard University Press, 2007. Pp. 333. $28.95.

Ever since Chris Eisgruber and Larry Sager began their joint foray into the jurisprudential controversy over religious freedom,1 American church-state scholars have been waiting for the publication of their full thesis on the subject. The results on display in Religious Freedom and the Constitution2 (Religious Freedom) amply justify the thirteen-year wait. The authors unpack a marvelously rich and comprehensive theory of the Religion Clauses and the relationship between those Clauses and the rest of the Constitution. The challenges they throw down to other leading theorists, the singularly coherent thread of their argument, and the beautifully textured quality of its presentation promise to influence the debate in this unruly field for years to come.

Unlike a number of other recent entries into the church-state field, Religious Freedom is not about history,3 and it barely touches on the role of religion in politics.4 This book is about law. The authors begin by forcefully pushing aside conventional notions of church-state separation as a basis for adequate legal principles. Church and state are not, and cannot be, entirely separate. Religious institutions and religious people depend upon the state for the common protections, opportunities, and obligations of our collective experience.5 These include, among others, police and fire protection; the instruments of banking, incorporation, and contract; and duties to respect the persons and property of others. All separationist theories, Religious Freedom argues, must acknowledge these thoroughly nonseparate features of our common life, and so are reduced to impossible questions of kind and degree. How much and what kind of aid to religion are impermissible "establishments"?6 How much and what kind of regulation of religiously motivated acts are unconstitutional prohibitions of "free exercise"?7

Moreover, Religious Freedom asserts, separationism demands persistent and unjustifiable discriminations, both for and against religion. On the regulatory side, separationism suggests immunities from regulation for religiously motivated actors, but not for morally equivalent actors with motivations that are equally deep but hap...

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