This book is a major contribution to an area of law and political theory that has become increasingly unsettled in the past quarter century. In the decades following World War II, the U.S. Supreme Court developed an interpretation of the religious clauses that assigned to religion a special place in the Constitution. On the free exercise side, the “compelling interest” test enshrined in Sherbert v. Verner (1963) prohibited any law that burdened religious action unless it could be justified by a compelling state interest. This limitation extended a special privilege to religion that was not enjoyed by other forms of belief and action. On the Establishment clause side, the “Lemon test” adopted in Lemon v. Kurtzman (1971) prohibited laws that did not satisfy a three-part test: Permissible laws had to have a secular purpose, not have a primary effect of advancing or inhibiting religion, and not foster an excessive entanglement of the state with religion. These restrictions effectively subjected religion to a disability that was not imposed on other forms of thought and action.

The postwar jurisprudence concerning religion and the Constitution has come under intense pressure since the 1980s. Most dramatically, in Employment Division v. Smith (1990), the Court all but abandoned the “compelling interest” test, replacing it with a much weaker requirement that laws be valid, neutral, and generally applicable. The Lemon test, too, has become something of a dead letter, with a number of current justices indicating that they no longer feel bound by it. In its place, members of the Court have elaborated a variety of alternatives, including the “Endorsement” test and an idea of neutrality as evenhandedness. The Court's dissatisfaction with the earlier approach to the religious clauses has been echoed in the scholarly community. Legal scholars and political theorists have assailed the Sherbert and Lemon standards as vague, incoherent, impossible to administer, and normatively unjustifiable. In their place, a variety of alternative theories have been proposed, the most plausible of which advocate an equality-based approach. For instance, Chris Eisgruber and Larry Sager (Religious Freedom and the Constitution, 2007) reject the view that religion is a “constitutional anomaly” and, instead, develop an egalitarian account in which religion is treated no worse than, but also no better than, other forms of human experience.

What is most interesting about Kent Greenawalt's new book is its relationship to the critical and revisionist ferment of the past quarter century. Much of the book is devoted to highly illuminating discussions of various subareas of establishment law (financial aid to religious organizations, school vouchers, religious words and symbols in public places, and so on), just as Volume 1 of his study, Free Exercise and Fairness, covered various debates relating to the free exercise clause. Although these discussions can be read on their own, as concise and critical introductions to particular controversies, what emerges from reading all of them—and from the more theoretically oriented chapters that Greenawalt intersperses throughout both volumes—is an approach that is quite hostile to the Court's (and the scholarly community's) current direction and that hearkens back to the Sherbert- and Lemon-era understandings of the religious clauses.

Greenawalt's argument is pluralist and contextual. He doubts that there is a single value, such as liberty of conscience or equality, that can explain and justify the diverse range of restrictions that he takes to be comprised by the Establishment clause. Recent commentators have suggested that the “separation of church and state” is an incoherent idea and have argued that a principle of equal treatment provides a more defensible foundation to nonestablishment. In Greenawalt's view, however, nonestablishment rests on both egalitarian and separationist values. In a range of areas, different religions should enjoy equal treatment with one another, and religion and nonreligion should be equally treated. But it is also important that individuals enjoy a space that is free from state influence and entanglement in which they can develop and exercise their own religious commitments. The author further suggests that pluralism need not imply indeterminacy. Both volumes of his study provide a magnificent demonstration of how careful attention to context can help to resolve apparent tensions between different values and standards.

Greenawalt's discussion of school vouchers illustrates the distinctiveness of his approach. In Zelman v. Simmons-Harris (2002), the Court upheld Cleveland's voucher policy on the grounds that it was neutral, or evenhanded, in its treatment of religious and nonreligious schools. Noting that the public school alternative to religious schools was of decidedly inferior quality, many critics of the decision accepted the basic principle of the decision but questioned whether Cleveland's scheme was in fact neutral. Greenawalt's critique is much more fundamental (pp. 414–424). Even perfect neutrality is consistent with heavy use of vouchers at pervasively religious schools. And this suggests that neutrality is consistent with a deep involvement by the government in funding religious education, one that, in the author's view, suggests a problematic entanglement of state with religion and an inappropriate influence of state over the development of religious belief. Insofar as his approach is not simply an egalitarian one, but privileges religion in some areas and disables it in others, one of its key assumptions is that religion occupies a special place in human experience. Although critics of the traditional approach to the religious clauses regard this as the shaky premise in the doctrine, Greenawalt is not embarrassed to mount a defense. Religious commitment is unlike a “mere preference,” he argues, in that it involves a sense of obligation, or at least a sense that one's identity is at stake (pp. 310; 217). These stakes make it especially appropriate that individuals be left free by the state to develop and refine their own religious convictions.

It is true that obligation and identity are at stake in certain other kinds of commitments, too, and Greenawalt is not fundamentally opposed to special treatment in other areas. He would give an exemption from combat service to secular pacifists, for instance. But in many areas, schemes of special treatment that extended beyond religion would be impossible to administer, and for this narrow reason, he thinks that religion often will turn out to be special (p. 476).

Although the book has a fairly narrow subject matter, Greenawalt's approach illuminates a range of issues in political theory. It will be especially useful for theorists interested in questions relating to identity, culture, and religion. Against the impulse in much contemporary liberal theory to say that religion and culture should be treated on a par with any other kind of preference or commitment, Greenawalt offers a major restatement of the case for treating certain special kinds of commitments differently.