Religious Freedom Based on Equality?

I've posted on SSRN a draft book review, forthcoming in the Texas Law Review, of the new book by Chris Eisgruber (provost at Princeton) and Lawrence Sager (dean at Texas), Religious Freedom and the Constitution -- a book that I think is quite impressive even though mistaken in several ways.  From the review abstract:

Eisgruber and Sager are the most sophisticated proponents of an approach to the Religion Clauses that emphasizes equality and nondiscrimination as opposed to any distinctive substantive liberty or autonomy in religious matters. . . .  The book is commendable because, among other things, it confronts the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern - one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality.

This essay argues, however, that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although their theory generates many normatively attractive results - offering, for example, a rationale for potentially strong protection of free exercise rights - they can only generate them by surrendering a focus on equality and nondiscrimination. I first argue that Eisgruber and Sager cannot give religious liberty the robust protection they claim without giving it more protection than some deeply felt nonreligious reasons for acting, and without showing some special concern for religious autonomy. I next turn to the special limits that Eisgruber and Sager reaffirm on government assistance to religion - especially government expression of religious sentiments - and conclude that Eisgruber and Sager cannot defend these special Establishment Clause limits and still object to giving exemptions to religious exercise but not secular beliefs. Finally, I discuss the primary alternative to an equality-based theory - the principle that government should respect and promote the choices of individuals and groups in religious matters - and present a brief case for it, both affirmatively and in response to Eisgruber and Sager's criticisms.

Tom