Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses.

• Author: Clarke, Stephen M.

1. INTRODUCTION

   In his book, Securing Religious Liberty, Jesse Choper articulates a "comprehensive thesis for adjudication of all significant issues that arise under the Religion Clauses of the Constitution." (p. 1) Choper gets off to a promising start. He dissects the Supreme Court's religion cases, illuminates. their conceptual incoherence, and demonstrates the need for a more principled approach. Buoyed by his "extensive reflection spanning a period of more than thirty years," (p. 190) Choper offers four grand principles that he believes will resolve all significant issues in religious jurisprudence. His principles are helpful in classifying and conceptualizing issues and he uses them as organizational tools for determining which governmental actions implicate the Free Exercise Clause and which implicate the Establishment Clause.

   Choper's application of his four principles is not as helpful, however. His deductions are questionable, as they appear to lack reasoned justifications and suggest unwarranted results. Ultimately, Choper falls victim to the daunting scope of his project, sacrificing depth of analysis for breadth of application. It is, therefore, not hard to understand why the book has been sharply criticized by reviewers and largely ignored by the courts.(3) As Choper himself candidly acknowledges, his thesis will likely prove "unacceptable to every existing interest group." (p. 189)

   Contrary to the suggestion of other reviewers, however, we believe the book is worth reading: it offers fresh and provocative ideas. One cannot read Securing Religious Liberty without engaging Choper's presuppositions, challenging his ideas, and emerging with a better understanding of the myriad problems arising under judicial interpretation of the Religion Clauses.

   In the four sections that follow, this review will (1) summarize Choper's four principles; (2) highlight the early reaction of legal academia; (3) apply Choper's four principles to a few current topics; and (4) conclude with a critique of Choper's analysis.

2. THE FOUR PRINCIPLES

   Choper's project is to promote a uniform interpretation and application of the Free Exercise Clause and Establishment Clause. Because he recognizes that the existing legal standards governing these clauses suffer from doctrinal deficiencies and inconsistencies, (p. 38) Choper wipes the slate clean and attempts to develop a new framework for analyzing cases implicating the Religion Clauses. He begins with the basic premise, derived from the history and text of the First Amendment and from "cherished contemporary values," (p. 6) that the purpose of the Religion Clauses is to "protect religious liberty and the integrity of individual conscience." (p. 9) Choper then articulates four principles that he believes will protect religious liberty and limit the influence of judges' "intuitive tendenc[ies]" and "personal predilections" in adjudicating Religion Clause disputes. (pp. 1, 7-8)

   1. FREE EXERCISE PRINCIPLES

      1. Deliberate disadvantage principle: "Government action that intentionally prejudices individuals because they have or do not have certain religious beliefs should be held to violate the Free Exercise Clause unless the government demonstrates that the regulation is necessary to a compelling interest." (p. 41)

         This free exercise principle is the least controversial of the four, and the one most in line with recent Supreme Court holdings. It says that if state action intentionally prejudices (i.e., discriminates against) individuals on the basis of their religious beliefs, that action is subject to strict scrutiny and is presumptively invalid.(4) Choper draws a fine line between legislative motive and legislative purpose in an attempt to distinguish oblique religious inspiration from antagonism toward religion. Legislative purpose describes the "things a legislator hopes to accomplish by the operation of the statute," whereas legislative motive describes "those things he hopes personally to achieve by the act of his vote." (pp. 45-46) Choper then states that religious animus in purpose, not motive, is subject to strict scrutiny when legislators advance "obviously implausible" purposes for challenged actions. (pp. 49-50)

      2. 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." (p. 54)

         In his introduction, Choper contends that the primary purpose of the Free Exercise Clause is to prevent the "state from impeding the practices of religious minorities." (p. 13) (emphasis added) Choper's burdensome effect principle, however, provides exemptions from generally applicable laws for any religious claimant that meets certain conventional criteria: sincerely-held belief, cognizable burden; and subjection to a burdensome law that is not necessary to achieve a compelling governmental interest. But Choper imposes additional, idiosyncratic criteria that the claimant must also meet: the exemption cannot force the government to abandon an entire program;(5) an alternative burden (if one exists) must be imposed on the claimant (e.g., Seventh-Day Adventist must close shop on Saturday instead of Sunday); the exemption cannot violate the Establishment Clause (as Choper contends it does in Sherbert v. Verner(6) because the religious claimant was awarded tax money in the form of unemployment compensation); (p. 21) and, most fundamental of all to Choper's framework, the law (if obeyed) would cause the person to suffer extratemporal consequences in the afterlife.

         Extratemporal consequences is Choper's answer to the question, "What is `religion'?" for purposes of applying the burdensome effect principle. Choper rejects many possibilities, including the expansive "ultimate concerns" definition which posits that religious faith is "the state of being ultimately concerned" in any ideology, including nationalism, secularism, individualism, economic utopianism, or scientific naturalism. (pp. 69-74) He dismisses this concept of religion as being too vague and theologically complex for courts to understand and apply with any consistency. (pp. 71-74) Choper also rejects the "transcendental reality" definition of religion, (pp. 80-85) which includes religions that believe in the temporal significance of human actions and temporal, divine intervention (e.g., most evangelical, Judaeo-Christian traditions). Choper believes this definition is overinclusive, as it encompasses traditionally "secular" ideologies as well as religious ones. (pp. 84-85)

         Instead, to balance the broad protection afforded by this principle's exemptions from government regulation, Choper draws a narrow definition of religion: belief in the "extratemporal consequences" of actions. (pp. 74-80) Claimants for religious exemptions must have good faith and sincerely-held beliefs that the results of their actions "extend in some meaningful way beyond their lifetimes." (p. 77) In Choper's view, the religions qualifying for this protection are those that comport with the "conventional, average person's conception of religion" (e.g., belief in God, but not belief in the Republican Party).(7) (p. 77) Thus, Choper believes courts would apply the "extratemporal consequences" definition of religion with greater consistency than the ultimate concerns or transcendental reality definitions.

   2. ESTABLISHMENT CLAUSE PRINCIPLES

      In his section, "Basic Postulates and Alternative Theories," (pp. 1-40) Choper burns off much of the jurisprudential dross of the Establishment Clause with convincing candor, beginning with the "endorsement" test as advocated by Justice O'Connor.(8) He criticizes the endorsement test on the ground that "federal judicial power should not be invoked to remedy harm no greater than `indignation,' `offense,' or the I `psychological consequence presumably produced by observation of conduct with which one disagrees."' (pp. 31-32) He fears that the endorsement test may be used to overturn legitimate government attempts to afford genuine, important religious accommodations. (pp. 31-34) Choper points out that government action that benefits or accommodates one religion would violate his deliberate disadvantage principle if such action were intended to stigmatize another person's religious beliefs.(9) (p. 50)

      Choper does not advocate a strict separation of church and state.(10) He implicitly repudiates the Lemon test." Choper analyzes both the purpose and effect of government action affecting religion, (pp. 35, 98-99, 160) but in a less formalistic, more flexible framework than that of the Lemon test. Government actions may have a religious purpose, as long as they do not pose a significant threat to religious liberty and are not discriminatory. Also contrary to Lemon, the "Principal effect" of such actions may be to advance religion, as long as they do not pose a meaningful threat to religious liberty. Moreover, Choper never invokes the cumbersome "excessive entanglement"' prong of Lemon as an evaluative criterion.(12)

      Choper follows his deconstruction of the Establishment Clause with a substitute framework:

      1. Intentional advantage principle...