Equal Liberty: A Path Between Strict Separation and Accommodation

BOOK REVIEW: “Religious Freedom and the Constitution,” by Christopher L. Eisgruber and Lawrence G. Sager

Religious Freedom

“Religious freedom,” if properly understood, should be a principle that everyone can embrace. It encompasses freedom to practice one’s religion, freedom in matters of religion (e.g., freedom from religion), and, more broadly, freedom in matters of conscience. Any one of these definitions should appeal both to people of faith and to the non-religious. The last one—freedom in matters of conscience—would be a term of choice for those who recognize that not all deeply-held beliefs and motivating moral principles are religious in nature.

The term “religious freedom” is not used in the the U.S. Constitution’s Bill of Rights. Nor is “freedom of religion.” The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The two phrasal modifiers of “law” in this sentence are known respectively as the “establishment clause” and the “free exercise” clause, and they originally applied only to the federal government. In 1947, the U.S. Supreme Court decided, in Everson v. Board of Education, that the Due Process Clause of the 14th Amendment warranted the application of the law to states and municipalities as well.

The Limits of Freedom

Ideally, some of the rights guaranteed by the Constitution are unlimited in their application. No one should be subjected to cruel or unusual punishment under any circumstances, and every citizen has a right to due process of law.

Other guaranteed rights are necessarily limited. Their unrestrained exercise may harm or infringe on the liberties of others. The right to bear arms does not include the right to carry concealed weapons or to carry guns into schools and government buildings. The right to free expression does not include the right to defame or threaten others or to publish trade secrets or copyrighted material.

Like the right to bear arms and the right to free expression, the right to free exercise of religion can never be absolute. It must work in tandem with the Establishment Clause and the Equal Protection Clause (of the 14th Amendment). A society in which everyone has unfettered freedom to exercise religious beliefs has no way to protect the vulnerable from faith-based abuse or to balance competing claims of faith and conscience.

Children deserve legal protection from parents who would deny them medical treatment on religious grounds and from churches that protect and enable abusive priests.

Underage girls need state protection from churchmen who claim their faith entitles them to multiple child brides.

Religious and non-religious minorities deserve fair accommodation in the public sphere, where dominant faith groups sometimes attempt to mark out territory to spread their brands. Holiday displays (creches), the words “under God” in the Pledge of Allegiance, school-sponsored prayers, Ten Commandments monuments and crucifixes on public land, and the teaching of creationism and “intelligent design” in the schools—all have sparked controversy and required litigation because of the establishment issues that they raise.

The underlying issue in all these cases is the same. School-sponsored prayers favor one religion over another, or they privilege religious belief over non-belief. In either case, they constitute an “establishment” of religion and a failure of equal protection if they are allowed by the courts. Ten Commandments monuments are suitable for church property but not for county courthouses, where they may be construed as an endorsement of Judeo-Christianity. Muslims, freethinkers, and Buddhists, among others, may feel excluded and disparaged when dominant religious tradition receive preferential treatment from government.

Unlimited free exercise may also encroach on other freedoms that Americans enjoy. When churches are exempted from land-use laws so that they can become mega-churches, residential neighborhoods often suffer from the increased noise and congestion. The 14th Amendment, guaranteeing all citizens equal protection of the laws, has provided the grounds for legal challenge in many such cases.

Ideally, citizens whose freedoms are abridged as the result of another group’s free exercise can mount legal challenges and the courts will render a judgment consistent with First Amendment principles.  Sometimes, however, legislatures enact laws favoring particular religious practices, and these laws go unchallenged for generations or are upheld by justices who either misinterpret or disregard the First Amendment.

The so-called “blue laws,” (now mostly repealed) were one of the most egregious examples of government establishment of religion. These laws were enacted by states and municipalities throughout the U.S. with the express purpose of enforcing the Christian observance of Sunday as a day of worship and rest. Most recreational and commercial activities were therefore prohibited on Sundays, creating an unfair advantage for Christians who wished to operate businesses on the Sabbath (Saturday), the required holy day for Seventh-Day Adventists and Jews. These religious minorities were, in effect, unable to engage in commerce for not just one day of the week but two.

Disputes over free exercise and establishment have plagued U.S. jurisprudence since our nation’s founding and may have become more bitter in the last half century. “Establishment” challenges are usually brought by separationists, while “free exercise” challenges come from accommodationists, who claim varying degrees of regulatory immunity for their religious institutions and practices.

In their 2007 book, “Religious Freedom and the Constitution” (Harvard University Press), Christopher L. Eisgruber and Lawrence G. Sager look back through the history of church-state issues and conclude that the principle of Equal Liberty has been more helpful in settling disputes than either strict separation or regulatory immunity (aka, “accommodation”). Equal Liberty has a constitutional pedigree that few Americans are aware of. They explain it as follows:

Equal Liberty directs Americans away from abstract speculations about the ideal relationship of church and state—questions about, for example, whether we have too much or too little religion in our public life, or about whether religion is good or bad for us, or about which forms of spirituality are best. It focuses instead upon how to structure cooperation in circumstances of diversity, and, as a result, its principles steer reliably and consistently between extremes in search of what is fair.

Two Extreme Views: Strict Separation vs. Regulatory Immunity and Accommodation.

Strict Separation

In 1802, Thomas Jefferson wrote to the Danbury Baptists Association, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”

The “wall of separation between church and state” is a useful metaphor, but not a constitutional principle. It has, however, served as a proxy for the clear First Amendment principle (expressed in the establishment clause) that no particular religion should be the favorite of the state. Taken too literally, it forecloses the possibility that religion and the state can affect each other. But in fact, there cannot be a firewall between church and state. Religious organizations in the U.S. are subject to laws enacted by the state and are beneficiaries of those same laws and of the services provided by the state. These include police and fire protection and access to legal process. Churches are subject to property laws, building codes, and land use regulations; their staffs enjoy the protections of labor laws and the benefits of state unemployment insurance programs.

Strict separationists insist on prophylactic policies to keep the two spheres apart. Many of them hold that religion is divisive and should be starved of public support, while others feel that a high wall of separation makes their own religious practice more secure. Separationists of both these persuasions favor “bright-line” principles that exclude religious organizations from any form of public funding, even when secular groups with similar or identical programs are eligible. This “one size fits all” approach ignores differences between faith-based social services that package religious indoctrination with their services and those that do not. Prophylaxis may not always be fair, in the separationists’ view, but it is easier to administer than statutes tailored to individual cases.

Strict separationists also oppose exempting religiously-motivated individuals or groups from otherwise applicable laws. Thus, in their view, Mormon polygamy should be disallowed, as should the ritual use of Peyote by native Americans. No exemptions should be granted from tax laws, land use regulations, dress codes, educational requirements, or public health and safety regulations. Again, their all-or-nothing approach sometimes sacrifices fairness in the interest of simplicity.

To say that strict separationism is an “extreme” position, however, is not to say that its claims are necessarily inconsistent with Equal Liberty. A judicial decision based on an Equal Liberty approach might be completely acceptable to either a separationist or an accommodationist.

Regulatory Immunity and Accommodation

At the other end of the spectrum are those who view any form of government regulation of religion as an infringement of free exercise. Some of these—the Christian Reconstructionists and Dominionists—even go so far as to advocate for the wholesale replacement of secular civil law by God’s law (as they interpret it). Until recently, few Americans would have expected such ideas to gain traction in this country, but then we learned that two of the early candidates in the 2012 presidential election campaign (Texas Governor Rick Perry and Minnesota Congresswoman Michele Bachmann) had strong Dominionist ties.

A more mainstream accommodationist view is that our legislatures and courts have sometimes been overly zealous in upholding the establishment clause, thereby imposing constitutional disabilities on religious expression.

Common to all forms of accommodation is the belief that religion is good for society and that it should be encouraged by government. Encouragement might take the form of immunity from otherwise valid laws regarding polygamy, dress codes, children’s health and safety, employment discrimination, and land-use laws. Or it might entail public funding of sectarian schools, social services, and the like.

Equal Liberty

Equal Liberty is fundamentally opposed to both strict separation and regulatory immunity, though—once again—its conclusions may satisfy advocates of either position.  Though Equal Liberty rejects blanket demands for special concessions to religious interests, it also recognizes that these interests—particularly those of minority faiths—sometimes need and deserve government solicitude to protect them from the hostility of other affiliative groups. Thus, no concession for Mormon polygamy has been allowed by U.S. courts, and Sikh students have been prohibited from carrying ceremonial kirpan (knives), as their religion requires. Both practices encroach upon the liberties of others, and neither can be justified on grounds of fairness or equality. (The statutes apply equally to everyone regardless of religious belief.) On the other hand, Sikh police officers in Newark, New Jersey have been granted exemption from the force’s ban on beards because other officers had been granted the same exemption on medical grounds (skin ailments). And a high school basketball association that allowed players to wear eyeglasses was required by court decision to make a comparable concession to orthodox Jewish players whose religion required them to wear yarmulkes.

Eisgruber and Sager provide copious examples of court cases that illustrate how the Equal Liberty principle has been or should have been applied. Their book delivers a sorely needed perspective on the religious wars going on in the U.S. and will be of interest to all readers who value religious—and equal—liberty.


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