"Equal Liberty" and Religious Freedom

Church-state experts Bob Tuttle and Chip Lupu have a new paper, examining the new book by Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution.  Here is the abstract (thanks to Larry Solum):

This essay is a review of Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Harvard University Press, 2007). Eisgruber and Sager reject many conventional notions of church-state separation. They offer an approach to religious liberty based on two basic principles, conjoined under the label “Equal Liberty.” First, “no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects.” Second, all members of the political community have a general set of liberty rights, including freedom of speech, personal autonomy, associational freedom, and private property, which allow a broad range of religious beliefs to flourish. From these principles, they develop elaborate accounts of the proper role of the free exercise clause and the establishment clause in our constitutional law.

This review essay focuses primarily on Eisgruber's and Sager's approach to the establishment clause. They claim that “Equal Liberty” provides an overarching framework for evaluating the permissibility of all government-sponsored religious speech, including current limitations on public school sponsorship of religious expression. They also claim that Equal Liberty can bring coherence to the vexed question of government financial partnerships with religious institutions.

In the review, we argue that Equal Liberty is not fully up to the task of either policing government religious speech, or measuring the permissibility of government financial relationships with religious providers of educational or other services. We question whether all religion-protecting norms can be fully explained in the authors' individualistic, rights-oriented, egalitarian terms. And we assert that religious commitments and religious institutions occupy a constitutionally distinctive place that Eisgruber & Sager are at pains to deny.

Indeed they do!