Religion Comes First in the Bill of Rights

New book offers legal principles for the judiciary in securing religious liberty and freedom of conscience


By Jesse Choper

University of Chicago Press 198 pp., $24.95

RELIGIOUS liberty is a very popular idea in the abstract. It is only when you apply the idea to specific situations that we begin killing one another.

A similar claim could be made about Jesse Choper's ''Securing Religious Liberty: Principles for Judicial Interpretation of the Religious Clauses'' -- that its appeal lies in its abstractness, a lofty purpose intended to provide ''a comprehensive thesis for adjudication of all significant issues that arise under the Religion Clauses of the Constitution [emphasis added].'' Professor Choper begins with such grand unifying principles that the reader is disappointed to discover where it all leads.

His suggested analytical framework for deciding cases becomes complicated, confusing, and finally irrelevant as it renders results that are neither constitutionally convincing nor politically feasible.

First, the good part.

The book makes clear that the underlying premise of both the ''no establishment'' and ''free exercise'' clauses is to secure religious liberty and the protection of conscience.

The ''free exercise'' clause does this by guarding against unintended burdens placed on religion by laws of general application (for example, drug laws that make peyote use illegal, thereby burdening the free-exercise rights of native Americans) as well as against government actions designed to restrict religious practice. This is a welcome antidote to the Supreme Court's crimped interpretation, which only guards against laws intended to restrict religion.

The ''establishment clause,'' Choper says, prohibits government favoritism for religion. According to Choper, no citizen should be coerced in matters of faith, nor should anyone be taxed to support religion.

So far, so good.

Choper next rebuts some of the prevailing church-state theories including that of ''strict neutrality'' which maintains that religion and religious people should be treated like everything and everyone else. The author understands that a church is not a McDonald's, and a yarmulke is not a baseball cap. Different rules sometimes must pertain. There are after all two religion clauses in the First Amendment. If religion is to be treated as everything else, why are they there?

Having warmed to the book's opening chapter, the reader soon discovers that things are not as promising as they sound. The author proposes a four-part thesis that though somewhat appealing in the abstract proves disappointing in its application.

The four principles are:

1. Government rarely may deliberately disadvantage religion.

2. Laws having a burdensome effect on religion may require exemptions for the faithful.

3. Government may accommodate (''intentionally advantage'') religion only when this can be done in a nondiscriminatory fashion and without endangering religious liberty.

4. Government programs may not benefit religion unless they have an independent secular benefit.

Each principle has its own peculiar definition of ''religion'' despite the fact that the word ''religion'' appears only once in the First Amendment -- a rather obvious indication that the framers had a single definition in mind.

The difficulty is aggravated by the fact that some of the four principles have qualifications that severely limit their application. For example, the principle that would grant exemptions to those whose religion is unintentionally burdened by government is only available if there are ''extratemporal consequences'' for the believer.

One possible interpretation of Choper's principles is that unless you believe God will reward your civil disobedience or punish your obedience to the offending law, you can forget any exemption. This makes exemptions unavailable to the faithful except in extreme cases.

The biggest problem with Choper's thesis is the changes it would necessitate in settled case law. He would allow the permanent placement of the Ten Commandments on the wall of a public school as well as the teaching of creationism in science class, yet he would not allow students to be released from school for off-campus religious instruction (a practice that not even the ACLU objects to).

He would allow aid to parochial schools, yet he would strike down tax exemptions for churches even when part of a larger exemption for all nonprofits. Even more troubling, he would reverse the fountainhead of constitutional protection for the free exercise of religion, Sherbert v. Verner. (Upheld on numerous occasions, the Supreme Court ruled in this case that a state must pay unemployment benefits to a Seventh Day Adventist even though she would not make herself available for work on Saturday, her sabbath. Government could not force such a ''cruel choice,'' the court stated -- loyalty to religion versus need for unemployment compensation. Government could burden a fundamental right like the free exercise of religion only if it were protecting a compelling interest and did so in the least restrictive way possible.)

Choper would also outlaw current chaplaincy programs for those in prison and in the military.

The best that can be said about this concise volume by one of America's most revered constitutional experts is that he is an equal-opportunity offender. His iconoclasm extends to those on the left and those on the right. No one's sacred cow is spared. For the academics, perhaps that is enough.

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