Equal liberty and religious exemptions: A response to Eisgruber and Sager

Abstract
In recent years, many have begun to push a nondiscrimination approach to the Religion Clauses. Two professors, Christopher Eisgruber (formerly of NYU Law School, now provost at Princeton University) and Lawrence Sager (now dean of the University of Texas School of Law), have now developed the most sophisticated and defensible version of nondiscrimination theory, recently publishing it as a Harvard University Press book, Religious Freedom and the Constitution (2007). This piece examines Sager's and Eisgruber's theory - known as "Equal Liberty" or "Equal Regard" - and reflects on both its triumphs and its defects. It demonstrates that Equal Liberty suffers from one particular pernicious and intractable problem - namely, that it is globally indeterminate. At the heart of Equal Liberty is a counterfactual that tries to give religious minorities the protections of mainstream secular and religious groups. When a religious minority is denied a religious accommodation, Equal Liberty asks whether mainstream secular and religious groups would have been able to get an exemption to do the same thing from the political process. If so, Equal Liberty says, a court should grant the religious minority an exemption as well. The deep problem with Equal Liberty, though, is that this counterfactual would seem to grant any religious exemption, no matter how extreme. As an example, take a minority religious group that wants an exemption from the laws forbidding polygamy. No court would give such an exemption. But Equal Liberty asks whether a mainstream group, if they wanted to practice polygamy, would be permitted to do so. And the answer to that seems to be yes. For if our society was such that a polygamous group could be considered mainstream, then it seems obvious that a religious polygamist would not be sent to jail. There is simply no claim for religious exemption that this counterfactual would clearly deny.After examining Equal Liberty, the piece then reconsiders the traditional compelling-interest test which governed Free Exercise Clause disputes until Employment Division v. Smith, and argues that it is actually more consistent with Equal Liberty's foundational principles that the doctrine that Sager and Eisgruber advocate. It also addresses the apparent gap between Equal Liberty and theories of substantive neutrality - and concludes that Equal Liberty, best understood, differs little from those theories.
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