Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution (2007). In this essay I develop, elucidate, and show the limits of the strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogized with other beliefs and practices according to a robust (...) metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Secular Government, Religious People by Ira C. Lupu and Robert W. TuttleJoshua T. MauldinSecular Government, Religious People Ira C. Lupu and Robert W. Tuttle grand rapids, mi: eerdmans, 2014. 279 pp. $25.00.In Secular Government, Religious People, Ira C. Lupu and Robert W. Tuttle provide a structuralist account of the Establishment Clause and suggest that their conception of the secular character of government resonates with the dominant strand of (...) First Amendment jurisprudence. On their view, the religion clauses are not only about the religious rights of persons; the Establishment Clause is primarily about the character of government itself. That character is secular, meaning that the government is “constitutionally disabled” from settling “ecclesiastical questions.” These include not only obviously theological questions about the nature of God or true religion but also seemingly more mundane matters such as “Who is fit to be a minister?” or “Which faction of a fractured religious congregation is closer to the beliefs of the congregation’s charter members?”The problem with judicial attempts to engage such questions became increasingly evident in the development of legal doctrine throughout the nineteenth and twentieth centuries, and one of the primary values of this book is its clear account of this history. One example is the “iconic” Supreme Court decision in the 1971 case of Lemon v. Kurtzman, which included an important rule against “excessive entanglement” between the state and religious groups, based on the Establishment Clause. For Lupu and Tuttle, this ruling is paradigmatic of their structuralist argument for nonestablishment. If the Establishment Clause requires that government be secular, then the government may not claim divine authority or establish a covenant with God or engage in acts of worship. The government may, nevertheless, acknowledge the religious character of its people; the religious freedom of the people is protected by the secular character of government in that a sphere of society is reserved for religious practice and thereby protected from governmental intrusion. While religious persons might actually prefer that government “interfere” in the religious sphere for various reasons, and might even view the government’s failure to do so as an assault on religious freedom, it is precisely the noninterference of government in religious matters that protects religious freedom.The book involves both a descriptive analysis of the development of American law and a normative argument for a particular legal philosophy. Tuttle and Lupu argue that it is best when government is secular, and they suggest that this is a basic assumption of mainstream American law, both in its origins and later [End Page 213] trajectory. Some will question the sharp distinction drawn between “government” and “people.” In a democratic society, is there a clear line between the people and the government as representative of the people’s will? Furthermore, one wonders whether the kind of American “civil religion” that Robert Bellah famously analyzed in the 1960s, and against which Tuttle and Lupu inveigh, is simply here to stay. American presidents continue to invoke God in public speeches, and many citizens believe that the United States itself is in a covenant with God. Tuttle and Lupu worry that any appeal to such a covenant leads to the “totalitarian” identification of political and divine authority. But the covenant with God could just as easily lead to a critique of political authority as to a reinforcement of it. As Abraham Lincoln declared in a legendary piece of American political theology, “The Almighty has his own purposes.” For Tuttle and Lupu, this kind of civil religion is both unconstitutional and bad public policy. But one wonders whether we could ever really eradicate it, and even if we could, whether it would be wise to do so.Joshua T. MauldinCenter of Theological InquiryCopyright © 2016 Society of Christian Ethics... (shrink)