Vol. 5 No. 8 (August, 1995) pp. 206-209

Editor's Note: The Review will occasionally publish several reviews of the same book from different perspectives. The following book is reviewed here by a law professor and in the following review by a political scientist.

SECURING RELIGIOUS LIBERTY by Jesse H. Choper. Chicago and London: The University of Chicago Press, 1995. 190 pp.

Reviewed by Rodney K. Smith (Law and Graduate Center, Capital University).

Jesse Choper's book, SECURING RELIGIOUS LIBERTY, is a thoughtful and welcome effort to articulate four principles for judicial interpretation of the religion provisions of the First Amendment. While Professor Choper engages in some occasional high theorizing, of the sort that characterizes much of what has been written about law and religion of late, he largely seeks to describe the content and workings of his four principles, in light of existing case law.

Choper opens the book with his belief that the dominant theme or premise of the religion provisions is "to protect religious liberty and the integrity of individual conscience, and that judicial enforcement of these provisions should be confined to securing those freedoms." (pp. 9) In the afterword, however, he acknowledges that his four principles are designed more for the purpose of enhancing judicial manageability of such cases than for the maximization of the liberty of conscience.

Choper's personal dissatisfaction with conclusions drawn from application of his four principles is not surprising given that troublesome incongruities would occur if a court were to apply his principles. For example, exemption from the draft on religious grounds or on some broader basis that would respect one's right of conscience would be impermissible, while a governmental declaration that "Christianity is our religion" or the offering of a sectarian prayer by a judge would not be; Sabbatarians would be required to either work on their Sabbath or give up unemployment compensation benefits, while vouchers and aid to parochial schools would be permitted; and, the deductibility of donations to a broad range of nonprofit entities (including churches and perhaps many political organizations that promote matters of conscience) would be impermissible, while erection of sectarian displays on public property or excising the teaching of evolution from the curriculum of public schools would be permitted. Most readers will no doubt join Choper in finding these and similar conclusions to be troublesome. Readers should not, however, ignore the book for this reason; there is much of benefit gained along the analytical road to those troublesome conclusions.

The thesis of the book is straightforward: religion clause jurisprudence should be governed by application of four principles. The principles are described and analyzed in detail in the text, but are "outlined" as follows: "The deliberate disadvantage' principle (chap. 2) almost always invalidates government action that intentionally handicaps people because of their religious beliefs. In an effort to afford greater security for religious freedom, the burdensome effect' principle (chap. 3) requires a special exemption when generally applicable rules adversely affect of religious practices, but only in narrowly delineated circumstances. In contrast, the intentional advantage' principle (chap. 4) generally permits the government to act in favor of religious interests, providing breathing room for the accommodation of both minority and

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mainstream religions but demanding that this be done nondiscriminatorily and without endangering religious liberty. Finally, the independent impact' principle (chap. 5) forbids government programs that support religion but have no independent secular effect (a result that is achieved regardless of any benefit to religion), even though they provide advantages for sectarian interest as part of a broader classification." (pp. 35)

The first two principles involve interpretation of Free Exercise and the last two deal with Establishment. Different definitions of "religion" are utilized, for various analytical purposes, however. Indeed, much space is allocated to discussing various definitional categories and problems. For example, in elaborating the "burdensome effect" principle, a number of definitional possibilities are considered: "Seeger-Welsh" (a definition of conscience drawn from the draft exemption cases); "ultimate concerns" (largely derived from Tillich's work); "extratemporal consequences" (beliefs with extratemporal consequences are protected); and, "transcendent reality" (strong duties are involved, but those obligations need not be extratemporal). Choper recognizes problems for each definition and acknowledges the appeal of an eclectic or an analogically based definition, but he opts for the least expansive definition --"extratemporal consequences" -- in assessing whether a law has a burdensome effect for an individual exemption from a law of general application on Free Exercise grounds. Use of this restrictive definition dramatically limits permissible exemptions from general laws. In applying his "intentional advantage" principle for Establishment purposes, however, he uses a very broad definition that draws no distinction between religious and nonreligious partisan ideologies. As a result, his Free Exercise analysis tends to be much more restrictive than his Establishment analysis.

Choper further acknowledges that his four principles do not maximize liberty of conscience in any theoretical sense. Despite his purported devotion to the liberty of conscience, he justifies his restrictive results on the ground that, as a matter of competence, the judiciary is not capable of applying a definition that examines the theological and psychological dimensions of religion or conscience. Rather, he prefers the "extratemporal consequences" definition, because it more tangible and content - based, thereby leaving less discretion to the judiciary. "Extratemporal consequences," however, captures only a small part of the essence of religion or conscience, leaving the remainder unprotected. To do this on the ground that the judiciary is incapable of dealing with such complex material fails to recognize that courts regularly examine analogous psychological evidence and sophisticated scientific material, material as complex as theology, in reaching decisions in many cases. Fairness demands as much. To argue, as Choper does, that a broad definition of conscience is unmanageable is unjustified. Exercise of conscience can never be adequately protected under the Choper model, because religious adherents are permitted to tell only a small and largely nonspiritual part of their story. Certainly, courts are not always correct in assessing such complex material, but this recognition is more of a call to caution and understanding that it is a call to avoidance of the sort advocated by Choper.

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In addition to arguing against the manageability of a broad (or more complete) definition of religion or conscience for Free Exercise purposes, Choper asserts that, "it is unlikely that an extremely broad definition of religion will be permitted to coexist with an extremely generous protection of the claims that fall within that definition." (pp. 63) For him, exemptions under a broad definition would be debilitating, hindering the work of government, ultimately leading to even more severe restrictions of religious liberty on other doctrinal or pragmatic bases. This conclusion is suspect for a number of reasons.

First, as an empirical matter, the broadest definition of religion or conscience used by the courts to date is the "Seeger-Welsh" definition used in the draft exemption cases during the Vietnam War. The Court used a broad definition of conscience, and a war of questionable popularity was fought, without a major movement on the part of the populace to seek exemptions on the basis of conscience. If "conscience" could be read broadly for such purposes, without the dire consequences predicted by Choper, his conclusion that religious liberty would ultimately be restricted by use of a less restrictive definition should not be readily accepted as an empirical matter.

Second, Choper's dire predictions undervalue the impact of the dominant culture on choices of the sort contemplated in the realm of conscience. It is unlikely, given the influence of our dominant culture, which rarely rushes to support a new sect or any sect at all for that matter, that an exemption on the grounds of conscience would unduly "coerce" (Choper's term) the unbeliever to join with the sect, particularly if (as Choper correctly asserts) alternative service were required where possible. Indeed, it might be effectively argued that a broad right of conscience is necessary to provide a counterpoint to the pervasive influence of our dominant culture.

Third, Choper's contention that political support for a broad definition is doubtful, is questionable. A strong political coalition in support of a broad definition of conscience for First Amendment purposes might develop, with individuals realizing that a broad definition would protect them when needed, just as it protects others when their conscience would be compromised by a law of general application.

Finally, Choper's variable definition for Free Exercise and Establishment purposes is inconsistent with the text of the First Amendment -- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" -- which clearly calls for a unitary definition. Choper does not justify this clear deviation from the constitutional text.

Choper argues, as well, that tax exemptions and public subsidies for religious activities should be forbidden, as a matter of historical design and present constitutional policy, even though he recognizes that, "the most effective way for the modern state to disparage any institution is to deny it financial benefits to which others are entitled as a matter of course." (pp. 171) Despite permitting aid to parochial institutions, provided that the aid goes to fund time spent providing secular education, Choper is

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otherwise very strict in asserting that no public subsidies (financial assistance) or tax exemptions for religious purposes are permissible. Choper's support for this conclusion is shallow. As an historical matter, public subsidies for religious activities have been permitted from the inception of the Republic and the courts have regularly permitted tax deductions and related support for various religious activities, so long as those activities promote conscience in a nonpreferential manner. It is not so much, therefore, whether tax and related financial assistance is given to support religious activity; rather, it is merely a question of when such aid should be forbidden. While Choper draws close to recognizing this fact, with his discussion of the need for an "equality" principle in our religious liberty jurisprudence, he persists in arguing that tax deductions and public subsidies for religious activities are impermissible.

As I completed SECURING RELIGIOUS LIBERTY, I was left with a certain ambivalence. While this book constituted perhaps the best effort to date to find a principled way to apply the religion provisions of the First Amendment, I remain unshaken in my confidence that a broader definition of "conscience" for both Free Exercise and Establishment purposes, combined with a requirement of equality or nonpreference, can provide a far more appealing means of extricating the courts from the confusion that continues to characterize contemporary religion provision jurisprudence.

Copyright 1995