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85 Tex. L. Rev. 1185 (2006-2007)
Can Religious Liberty Be Protected as Equality

handle is hein.journals/tlr85 and id is 1201 raw text is: Book Reviews

Can Religious Liberty Be Protected as Equality?
RELIGIOUS FREEDOM AND THE CONSTITUTION. By Christopher L. Eisgrubert
and Lawrence G. Sager.+ Cambridge, MA: Harvard University Press, 2007.
Pp. 333. $28.95.
Reviewed by Thomas C. Berg*
Among the central questions concerning the First Amendment's
Religion Clauses is whether their fundamental goal is nondiscrimination or a
substantive liberty. Do they primarily require that government not engage in
discrimination among religions or between religious and nonreligious ideas?
Or do they primarily guarantee decisions about religious matters and reli-
gious life a zone of liberty or autonomy against state restriction, or a degree
of separation from state involvement?
The two approaches, nondiscrimination versus substantive liberty or
autonomy, overlap and sometimes produce similar results, as for example
when free speech rights protect the freedom of religious and nonreligious
expression equally broadly.' Often we do not have to choose between the
approaches.   But in their pure forms, nondiscrimination and substantive
autonomy will necessarily produce some divergent results in a society, such
as ours, where government is extensive and involved in many aspects of life.
When government regulates society extensively, allowing it to regulate re-
ligion equally extensively will clash with people's ability and right to
exercise religion freely. On the other side, because federal, state, and local
governments promote a variety of moral ideals they favor-through
legislation, tax-supported   spending, state-operated   schools, and    other
means-to allow them similarly to promote their favored religious ideas
t Provost and Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson
School and the University Center for Human Values, Princeton University.
I Dean, John Jeffers Research Chair in Law, and Alice Jane Drysdale Sheffield Regents Chair
in Law, The University of Texas School of Law.
* Professor of Law, University of St. Thomas School of Law (Minnesota). Thanks to Rick
Garnett, Doug Laycock, and Rob Vischer for very helpful comments on previous drafts. They
saved me from various errors and miscommunications; those that remain are, of course, my
responsibility.
1. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (affirming equal rights
of religious speakers in a designated public forum); Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753 (1995) (same for a traditional public forum).

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