Vol. 5 No. 8 (August, 1995) pp. 210

SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES by Jesse H. Choper. Chicago: University of Chicago Press, 1995, Pp. 190. $24.95.

Reviewed by Barbara M. Yarnold, Florida International University

The author recognizes on repeated occasions that the U.S. Supreme Court is comprised of highly subjective decision makers, and that the decisions of the Court, particularly in religious freedoms cases, tend to be molded not by legal standards but by the personal biases of individual justices. The principles he provides in the book are intended to "provide judges with intelligible guidelines for the exercise of discretion and judgment that inheres in constitutional decision making and should be designed to limit, as much as practicable, the intuitive tendency of these judges, acting in good faith, to bring their personal predilections to bear on the issues that come before them." (p. 1). He proposes his four principles -- the main portion of the book -- to replace the subjective decision making currently engaged in by the U.S. Supreme Court.

Given the explicit acknowledgment by the author that the Supreme Court is a subjective decision maker, this book at first glance wold seem to be an exercise in futility. Does one anticipate that the members of the U.S. Supreme Court, who have continuously operated in an environment of vague or conflicting legal standards and who, one might add, are probably not altogether disturbed by this fact, to adopt four legal principles to guide them in these cases? Instead, the Justices of the Supreme Court, to varying degrees depending upon their individual values and preferences, may in fact feel quite comfortable in an environment which places so few legal constraints upon their decision making. Few legal restraints translate into high levels of discretionary authority. As a result, it is highly unlikely that the U.S. Supreme Court will adopt Choper's four principles, however, they may be hotly debated in law schools and among law professors who are still influenced by the belief that courts are or should be objective decision makers, constrained by the law.

With regard to the text itself, it does a reasonable job of formulating four principles for cases which deal with religious liberty. Before this however, quite useful is Choper's comment that history or the intention of the Founding Fathers does not give one much guidance in adjudicating cases involving religious liberty, since many of the issues that currently arise occur in the context of public schools, which were not even in existence at the time that the Founders were crafting the Constitution and its amendments. With regard to free exercise cases, he collapses these cases into establishment cases, arguing that they have a common underlying element, namely one's freedom to practice (or not) one's religion. His analogy between equal protection and religious freedom cases is quite provocative, as well as his suggestion that government regulations which affect religion should meet the strict scrutiny standard.

The four principles fall into the category of deliberate disadvantage, burdensome effect, intentional effect, and independent impact principle, and he suggests appropriate standards for dealing with each of these four areas. The book is well-written, but it does suffer from the usual fatigue associated with doctrinal analysis of court cases.

Copyright 1995