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Religious Freedom and the Constitution Christopher L. Eisgruber and Lawrence G. Sager Harvard University Press/$28.95 Christopher Eisgruber and Lawrence Sager probably dream of seeing a Supreme Court justice carrying their book under his arm. They think they’ve come up with a better way to deal with the perpetual stream of cases where religion intersects with constitutional questions � better than the courts have managed over the last 60 years in cases over free exercise, school vouchers, classroom curricula, government subsidies, legal exemptions and public displays. The authors � Eisgruber is a provost at Princeton University and Sager, dean of the University of Texas School of Law � have already put a name to the philosophy they’re peddling: Equal Liberty. While the term may seem hokey, it’s not hard to see the benefit of some easily cite-able shorthand. Think of strict scrutiny. Chances are slim, though, that David Souter or Samuel Alito will pick up “Religious Freedom and the Constitution” and set off with the court down a new precedent-setting path. But the 285-pager will easily engage moderates in debates over church and state. Most likely, it will spark some lively law school discussions. And if the authors are lucky, the right lawyer will become enamored and use their theory to frame his next brief. The book describes the Equal Liberty approach as one that seeks a middle ground, based on three guiding principles: 1) People should not be treated unequally due to the spiritual (or unspiritual) foundations of their “deep commitments.” 2) Religion isn’t deserving of special benefits or obstacles. (In other words, religious people and organizations should share fairly in society’s burdens, but should also be exempt from burdens that aren’t fairly shared by others.) 3) The notion of personal liberty should be construed broadly. Their philosophy alone is interesting and coherent, although it can make for dry reading. The book becomes more engaging when the authors get into the long trail of case law in the area � engrossing, really, to anyone predisposed to the topic � then analyze those same cases under the Equal Liberty approach.
The book becomes more engaging when the authors get into the long trail of case law in the area, then analyze those same cases under the Equal Liberty approach.

In telling the story of Employment Division v. Smith, then, they start with how the 1990 U.S. Supreme Court case went down: The Oregon government fired Al Smith from his job as a substance abuse counselor because he had participated in a Native American church ritual that involved peyote, at the time a banned substance in that state. The Supreme Court sided with Oregon, holding that religiously motivated people have no special right to violate the law if it’s generally applied and doesn’t adversely single out religious behavior. (Ultimately, Congress and the Oregon legislature passed legislation to protect sacramental peyote use.) Under Equal Liberty, the authors say they would have approached that case by looking to see if the state had made or would make the same accommodation, or an analogous one, for more mainstream religious or secular interests. Oregon’s drug law lacked an apples-to-apples accommodation. But Eisgruber and Sager note that its alcohol regulations made some exceptions for the sacramental use of wine for Christian ceremonies. So, absent a solid explanation for treating peyote and wine differently, they concluded, Smith should have been accommodated. Clearly, Eisgruber and Sager haven’t been shy about vetting their theory. They respond to criticisms they’ve already encountered, usually doing a sound job of respecting the viewpoints of their academic critics as well as the religious and non-religious stakeholders in each controversy. On rare occasion, though, they’re careless with their language in a way that seems dismissive of some of the people you’d think they’d want to persuade. Take, for example, their description of part of the intelligent design theory some advocates want taught in public schools: The authors say ID’s proponents, in explaining gaps in the evolutionary record, favor God “over fairies, transcendental pasta, or the possibility of a science unknown.” Technically true. But it’s not hard to imagine that alienating some of their potential audience. Despite their lofty aspirations for Equal Liberty � to lay out a framework for cooperation and “steer between extremes in search of what is fair” � they know who is likely to buy into their theory and who isn’t. As they themselves note, “Equal Liberty presupposes a commitment to respect theological (and nontheological) perspectives different from one’s own.” There are plenty of Americans, religious or not, who just don’t fit that description.

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