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Religious Freedom and the Constitution [Hardcover]

by Christopher L. Eisgruber, Lawrence G. Sager
5.0 out of 5 stars  See all reviews (2 customer reviews)


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Book Description

February 28, 2007 0674023056 978-0674023055

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.



Editorial Reviews

From The New Yorker

The authors argue that the "wall of separation" between church and state is a clumsy metaphor that, in the past sixty years, has repeatedly led courts into "jurisprudential quicksand." In its place, they offer a principle that they call equal liberty, which diverts attention from "imponderable questions about the goodness of religion" and focusses it on individual cases. Free religious expression thus becomes largely a function of other freedoms—like those of speech and association. The authors proceed patiently and sensibly through considerations of crèche displays, conscientious objectors, ritual animal slaughter, and peyote smoking. Their recommendations may prove more useful as a philosophical corrective than as a set of juridical guidelines, but their careful attention to the social meaning of symbols, and their nuanced concern with the sociological role and ideological sway of religion in American culture, insures the persuasive force and continuing relevance of their arguments.
Copyright © 2007 Click here to subscribe to The New Yorker

Review

One of the most important books on religious liberty to appear in years. Anyone interested in freedom of religion should read it, and for specialists in the area, it is a must.
--Andrew Koppelman, Northwestern University School of Law

In an era when the proper role of religion in the public sphere is fiercely debated, Professor Christopher Eisgruber and Dean Lawrence Sager argue that religious institutions and practitioners have a right to be free from governmental discrimination on account of religious beliefs but have no right to be exempt from generally applicable laws on account of religious beliefs...Far from being an abstract exercise, Religious Freedom and the Constitution offers satisfying answers to some of the most vexing questions on religion facing the Constitution, including religious public displays, school prayer, and the Pledge of Allegiance. (Harvard Law Review)

The authors proceed patiently and sensibly through considerations of creche displays, conscientious objectors, ritual animal slaughter, and peyote smoking. Their recommendations may prove more useful as a philosophical corrective than as a set of juridical guidelines, but their careful attention to the social meaning of symbols, and their nuanced concern with the sociological role and ideological sway of religion in American culture, insures the persuasive force and continuing relevance of their arguments. (New Yorker 2007-06-11)

Christopher Eisgruber and Lawrence Sager are serious, accomplished scholars, and they have produced a valuable, provocative book. It will, and should, help frame the debate about religious freedom under law for years to come.
--Richard W. Garnett (First Things 2007-05-01)

Product Details

  • Hardcover: 352 pages
  • Publisher: Harvard University Press (February 28, 2007)
  • Language: English
  • ISBN-10: 0674023056
  • ISBN-13: 978-0674023055
  • Product Dimensions: 8.4 x 5.8 x 1.3 inches
  • Shipping Weight: 1.2 pounds
  • Average Customer Review: 5.0 out of 5 stars  See all reviews (2 customer reviews)
  • Amazon Best Sellers Rank: #1,452,792 in Books (See Top 100 in Books)

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1 of 5 people found the following review helpful
Format:Paperback|Verified Purchase
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.
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2 of 8 people found the following review helpful
5.0 out of 5 stars Why Are Liberals Liberals December 8, 2010
Format:Paperback
About 10 years ago, the American Civil Liberties Union filed three federal lawsuits against four counties in Kentucky alleging a violation of the First Amendment's Establishment Clause for displaying the Ten Commandments in courthouses. The ACLU won all three of the lawsuits in district courts, and the counties appealed to the United States Court of Appeals. The appellate judges reversed two of the cases, but let stand American Civil Liberties Union of Kentucky v. McCreary County in a decision filed on June 9, 2010. McCreary County plans to appeal to the United States Supreme Court, but the ACLU is not appealing the two other cases.

In this scholarly book, the authors propose principles for deciding such cases and call their jurisprudence Equal Liberty. The authors discuss the Supreme Court's 2005 five-to-four decision in ACLU v. McCreary upholding a preliminary injunction against displaying the Ten Commandments. Equal Liberty does not preclude a decision in favor of the displays, but the authors disagree with the lengthy opinion written by Justice Antonin Scalia:

"Three of the dissenters--Scalia, Rehnquist, and Thomas--also defended Kentucky's display on a more radical ground. They said that the Establishment Clause left the government entirely free to endorse religion over nonreligion and, indeed, to endorse monotheism over other forms of religion. That view, which Scalia tried to defend on historical grounds, is of course at radical odds with the principles of Equal Liberty." (p. 144)

Eisgruber and Sager are liberals, and the Supreme Court may overturn the final decision in ACLU v. McCreary because the present court is less liberal than the court in 2005. But what is a liberal and why are some people liberal and not others?
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