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Religious Freedom and the Constitution
Religion has become a charged token in a politics of division. In disputes about faith-based social services, public money for religious schools, the Pledge of Allegiance, Ten Commandments monuments, the theory of evolution, and many other topics, angry contestation threatens to displace America's historic commitment to religious freedom. Part of the problem, the authors argue, is that constitutional analysis of religious freedom has been hobbled by the idea of "a wall of separation" between church and state. That metaphor has been understood to demand that religion be treated far better than other concerns in some contexts, and far worse in others. Sometimes it seems to insist on both contrary forms of treatment simultaneously. Missing has been concern for the fair and equal treatment of religion. In response, the authors offer an understanding of religious freedom called Equal Liberty. Equal Liberty is guided by two principles. First, no one within the reach of the Constitution ought to be devalued on account of the spiritual foundation of their commitments. Second, all persons should enjoy broad rights of free speech, personal autonomy, associative freedom, and private property. Together, these principles are generous and fair to a wide range of religious beliefs and practices. With Equal Liberty as their guide, the authors offer practical, moderate, and appealing terms for the settlement of many hot-button issues that have plunged religious freedom into controversy. Their book calls Americans back to the project of finding fair terms of cooperation for a religiously diverse people, and it offers a valuable set of tools for working toward that end.
352 pages, Hardcover
First published February 28, 2007
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Displaying 1 - 4 of 4 reviews
February 4, 2015
The book is written in an easily-accessible style, and makes religious freedom jurisprudence understandable to someone not especially familiar with it. The authors also rightly identify the chaos and irrationality that characterizes the state of our religious freedom jurisprudence.
Moreover, the theory underlying the book, "Equal Liberty," is at first quite convincing. The authors contend that, rather than treating religious freedom as special, we should treat it like many other of the rights guaranteed by the Constitution: as, at its base, concerned about equality. That is, religion should be provided no benefits not available to secular interests, but it should also not have imposed upon it any special disadvantages. This approach is of particular interest because it departs from the typical battle-lines of the debate over religious exemptions and religious freedom.
Unfortunately, the authors' notion of "Equal Liberty" becomes less convincing throughout the rest of the book, which is largely comprised of examples of how the theory would be applied. In one chapter, for example, the authors provide the example of a police department's beard policy: The department in question prohibits beards, although it provides an exception for those with a certain medical condition which makes shaving extremely painful. The authors then assert that, because there is a "secular" exemption--that is, the medical exemption--there must also be a religious exemption. Although I agree that there ought to be some sort of religious accommodation, the authors never explain why all non-religious exemptions, such as medical accommodations (which are sometimes required by law), are considered "secular" exemptions. This sort of equivalence would result in unbelievably broad religious exemptions to every law under the sun, since almost all laws have one exemption or another.
In addition, the authors never satisfyingly explain why all secular interests must be treated the same way as religious belief: Why is it, for example, that we cannot distinguish between medical exemptions and exemptions for political or moral opposition? It seems a false equivalence to suggest that accommodating someone so that they can avoid great physical pain, or perhaps even death, necessitates accommodating someone so that they can assuage their conscience or fulfill the dictates of their religious belief, however sincere and deeply-held.
Finally, despite their initial claim that religion should not be treated any differently from secular belief, the authors' "Equal Liberty" theory in some instances mandates exactly that. Because the authors' conception of "Equal Liberty" effectively requires allowing religious exemptions to any rule or law that has any non-religious exemption in it, the beliefs of the religious will almost always be accommodated; yet, in instances such as the police department which prohibits beards, the result is that religious beliefs are accommodated, but secular beliefs are not: Individuals who hold very deep moral or political opposition to growing a beard, for example, will not be accommodated.
So, though initially seemingly promising, the authors' proposed "Equal Liberty" formulation of religious freedom actually gets us only back to where we started: With religious belief being treated better than secular belief, however that secular belief might manifest.
Moreover, the theory underlying the book, "Equal Liberty," is at first quite convincing. The authors contend that, rather than treating religious freedom as special, we should treat it like many other of the rights guaranteed by the Constitution: as, at its base, concerned about equality. That is, religion should be provided no benefits not available to secular interests, but it should also not have imposed upon it any special disadvantages. This approach is of particular interest because it departs from the typical battle-lines of the debate over religious exemptions and religious freedom.
Unfortunately, the authors' notion of "Equal Liberty" becomes less convincing throughout the rest of the book, which is largely comprised of examples of how the theory would be applied. In one chapter, for example, the authors provide the example of a police department's beard policy: The department in question prohibits beards, although it provides an exception for those with a certain medical condition which makes shaving extremely painful. The authors then assert that, because there is a "secular" exemption--that is, the medical exemption--there must also be a religious exemption. Although I agree that there ought to be some sort of religious accommodation, the authors never explain why all non-religious exemptions, such as medical accommodations (which are sometimes required by law), are considered "secular" exemptions. This sort of equivalence would result in unbelievably broad religious exemptions to every law under the sun, since almost all laws have one exemption or another.
In addition, the authors never satisfyingly explain why all secular interests must be treated the same way as religious belief: Why is it, for example, that we cannot distinguish between medical exemptions and exemptions for political or moral opposition? It seems a false equivalence to suggest that accommodating someone so that they can avoid great physical pain, or perhaps even death, necessitates accommodating someone so that they can assuage their conscience or fulfill the dictates of their religious belief, however sincere and deeply-held.
Finally, despite their initial claim that religion should not be treated any differently from secular belief, the authors' "Equal Liberty" theory in some instances mandates exactly that. Because the authors' conception of "Equal Liberty" effectively requires allowing religious exemptions to any rule or law that has any non-religious exemption in it, the beliefs of the religious will almost always be accommodated; yet, in instances such as the police department which prohibits beards, the result is that religious beliefs are accommodated, but secular beliefs are not: Individuals who hold very deep moral or political opposition to growing a beard, for example, will not be accommodated.
So, though initially seemingly promising, the authors' proposed "Equal Liberty" formulation of religious freedom actually gets us only back to where we started: With religious belief being treated better than secular belief, however that secular belief might manifest.
May 27, 2008
Equal Liberty? Sorry, I don't buy it.
When should Muslim men be forced to shave for their work dress codes? When should a student be forced to stand for the Pledge? When can a city display the holiday creche in a courthouse? Well, after a semester spent grappling with the crooked line caselaw of religious freedom, I was interested to read these authors' tidy "normative" approach to dealing with the highly sensitive issues in religious freedom. The final effect is to treat religious freedom like the various other freedoms guaranteed by our Constitution (speech, press, assembly). I admire this book's creative thought in an area so fraught with controversy, but must insist that religion be afforded a more reverential treatment... far, far away from state actions.
Turns out I AM a strict separationist. And proud of it.
When should Muslim men be forced to shave for their work dress codes? When should a student be forced to stand for the Pledge? When can a city display the holiday creche in a courthouse? Well, after a semester spent grappling with the crooked line caselaw of religious freedom, I was interested to read these authors' tidy "normative" approach to dealing with the highly sensitive issues in religious freedom. The final effect is to treat religious freedom like the various other freedoms guaranteed by our Constitution (speech, press, assembly). I admire this book's creative thought in an area so fraught with controversy, but must insist that religion be afforded a more reverential treatment... far, far away from state actions.
Turns out I AM a strict separationist. And proud of it.
October 19, 2008
I did not enjoy this book at all. The analytical theory that is presented here has the right general idea, but it fails on so many levels when it is presented with difficult factual scenarios. The author's begin with a certain premise of analyzing religious freedom, but as the book progresses, they bend that theory to make it fit with "hard" cases. It just didn't work for me.
January 11, 2009
Good book, could have been shorter....I don't believe the theory
Displaying 1 - 4 of 4 reviews