Vol. 5 No. 8 (August, 1995) pp. 210
SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL
INTERPRETATION OF THE RELIGION CLAUSES by Jesse H. Choper.
Chicago: University of Chicago Press, 1995, Pp. 190. $24.95.
Reviewed by Barbara M. Yarnold, Florida International University
The author recognizes on repeated occasions that the U.S. Supreme
Court is comprised of highly subjective decision makers, and that
the decisions of the Court, particularly in religious freedoms
cases, tend to be molded not by legal standards but by the
personal biases of individual justices. The principles he
provides in the book are intended to "provide judges with
intelligible guidelines for the exercise of discretion and
judgment that inheres in constitutional decision making and
should be designed to limit, as much as practicable, the
intuitive tendency of these judges, acting in good faith, to
bring their personal predilections to bear on the issues that
come before them." (p. 1). He proposes his four principles
-- the main portion of the book -- to replace the subjective
decision making currently engaged in by the U.S. Supreme Court.
Given the explicit acknowledgment by the author that the Supreme
Court is a subjective decision maker, this book at first glance
wold seem to be an exercise in futility. Does one anticipate that
the members of the U.S. Supreme Court, who have continuously
operated in an environment of vague or conflicting legal
standards and who, one might add, are probably not altogether
disturbed by this fact, to adopt four legal principles to guide
them in these cases? Instead, the Justices of the Supreme Court,
to varying degrees depending upon their individual values and
preferences, may in fact feel quite comfortable in an environment
which places so few legal constraints upon their decision making.
Few legal restraints translate into high levels of discretionary
authority. As a result, it is highly unlikely that the U.S.
Supreme Court will adopt Choper's four principles, however, they
may be hotly debated in law schools and among law professors who
are still influenced by the belief that courts are or should be
objective decision makers, constrained by the law.
With regard to the text itself, it does a reasonable job of
formulating four principles for cases which deal with religious
liberty. Before this however, quite useful is Choper's comment
that history or the intention of the Founding Fathers does not
give one much guidance in adjudicating cases involving religious
liberty, since many of the issues that currently arise occur in
the context of public schools, which were not even in existence
at the time that the Founders were crafting the Constitution and
its amendments. With regard to free exercise cases, he collapses
these cases into establishment cases, arguing that they have a
common underlying element, namely one's freedom to practice (or
not) one's religion. His analogy between equal protection and
religious freedom cases is quite provocative, as well as his
suggestion that government regulations which affect religion
should meet the strict scrutiny standard.
The four principles fall into the category of deliberate
disadvantage, burdensome effect, intentional effect, and
independent impact principle, and he suggests appropriate
standards for dealing with each of these four areas. The book is
well-written, but it does suffer from the usual fatigue
associated with doctrinal analysis of court cases.