Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court’s Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in contending that an equality emphasis misses much of importance in religion clause jurisprudence, but their emphasis on liberty or equal liberty is too narrow. Instead, he suggests an understanding of the proper place of equality in religion clause jurisprudence requires an appreciation of a wider range of values.
Professor Shiffrin recognizes that the equality value is important, but shows that many deviations from religious equality are deeply embedded in the framework of government operations. For example, it will not work to maintain that our Constitution regards religion and nonreligion as equal. Indeed, the religion clauses are best interpreted to protect religion not just because of values such as autonomy, equality, community, and religious peace, but because religion is regarded as valuable. This, he suggests, is a regrettable interpretation. It obviously is a bitter pill for religious skeptics to swallow, and it should even be a source of regret for most religious believers. Nevertheless, this interpretation is the best reading of our evolving Constitution. The foundational view that religion is valuable, however, does not flirt with theocracy. Far from it. The Constitution forbids coercion and, with exceptions, the favoring of one religion over another. Even more important, the Constitution, with some exceptions, is best interpreted to curb government intervention that favors religion, not because religion is a constitutional stepchild, but because the seductions of governmental dependence are great and because government is not to be trusted.
In applying his analysis, Professor Shiffrin explores many examples, including (1) the ingestion of peyote; (2) animal sacrifice; (3) the government ‘s use of religious symbols; (4) the government’s support of monotheism, including the Pledge of Allegiance; (5) the teaching of evolution in the public schools; (6) the government’s protection of conscientious objectors and those who refuse to work on the Sabbath; and (7) voucher programs together with government support for religion within the public schools. Given the pluralistic nature of the values underlying the religion clauses and the variety of contexts in which questions about the legal status of religion arise, he concludes that equality can best be seen as one important value among many in a rich and evolving tradition.
This tradition, he argues, is misunderstood by both the secular left and the religious right. The secular left does not understand the importance of religion in our constitutional tradition, and the religious right does not understand that government harms religion when it tries to help. Neither the secular left nor the religious right understand the complex dimensions of religious equality.
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