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

• Author: Freier, Jason M.

By Jesse H. Choper.(*) Chicago: The University of Chicago Press, 1995. Pp. xiii, 190. $24.95.

I

At a time when the role that religion should play in government is under increasing scrutiny in each of the three branches of the federal government,(1) Jesse H. Choper's Securing Religious Liberty endeavors to bring coherence to the jurisprudence concerning the Free Exercise and Establishment Clauses of the First Amendment. Choper, the former Dean of the University of California at Berkeley School of Law, is not new to this area, having written numerous articles on various aspects of the Religion Clauses.(2) In his latest work, Choper endeavors to articulate a "comprehensive thesis for adjudication of all significant issues that arise under the Religion Clauses" (p. 1). His scheme consists of four principles: two for the Free Exercise Clause and two for the Establishment Clause. Each pair of principles is accompanied by a corresponding, clause-specific definition of religion.

Though Choper exposes many inconsistencies in the existing jurisprudence, he fails to articulate a particular vision of the relationship between government and religion. He sees himself as taking a moderate position requiring sacrifices by those on both sides of the debate. Yet Choper's effort to bridge this divide ultimately fails because his four principles lack a unifying theme. The result is that his position ultimately cannot withstand the tension it generates within itself. One manifestation of this tension is an interpretation of the Establishment Clause that both contradicts Choper's own assertions in the Free Exercise context and is implausible in its own right.

II

For each of the Religion Clauses, Choper offers one principle for use in evaluating laws whose purpose is to benefit or burden religion and another for secularly motivated laws that incidentally affect religious interests. Choper also provides clause-specific definitions of religion to act as gatekeeping mechanisms for each clause.

The first of Choper's principles pertaining to the application of the Free Exercise Clause is the "deliberate disadvantage principle." It applies to government actions that intentionally prejudice individuals based on their religious beliefs. Under this principle, such actions "should be held to violate the Free Exercise Clause unless the government demonstrates that the regulation is necessary to a compelling interest" (p. 41). If a regulation is found to violate this principle, Choper argues, it is invalid.

When a government regulation is not enacted with the intent of handicapping any individual or group on the basis of their religious beliefs, yet has the effect of doing so, Choper's second principle, the "burdensome effect principle," applies. According to this principle, the Free Exercise Clause requires that an exemption to generally applicable secular laws be granted so long as four conditions are satisfied: (1) the claimant has suffered cognizable injury; (2) the exemption does not violate the Establishment Clause or require the government to abandon its entire regulatory program; (3) the individual's beliefs are sincerely held and violation of those beliefs is thought to entail extratemporal consequences; and (4) the government cannot demonstrate that denial of the exemption is necessary to meet a compelling interest. When such an exemption is granted, the government should impose an alternative burden so long as one exists that does not conflict with the religious objector's beliefs (p. 54).

Choper realizes that [t]he ultimate reach of the Free Exercise Clause can be expanded...