stitutional norms of liberty and equality. The First Amendment protects the free exercise of religion while guarding against the establishment of religion. Starr argues forcefully that equality of treatment between religious and nonreligious groups offers the key to understanding the clause. Bridget Mergens should be allowed to have her Bible club as long as any secular group may also use school facilities for extracurricular activities. This principle of equality works quite well in this case, in which all students are required to pay to support the use of public spaces, but some of the students are being denied equal access solely because of their religious beliefs. Starr convincingly uses this argument to criticize the jurisprudence of the early Burger Court (which, in this as in other areas, out-Warrened the Warren Court) that allowed the exclusion of religious groups from public places to preserve the strict wall of separation between church and state. Starr uses the same line of reasoning to defend the right of parents to use school vouchers at religious schools—a view the Supreme Court narrowly upheld this past term.
Starr does not, however, address the conflict between liberty and equality in such cases as Employment Division v. Smith, in which the Supreme Court upheld a generalized criminal ban on the use of peyote even when consumed as part of tightly regulated religious rites—a decision that sparked appropriate outrage among civil libertarians and religious conservatives alike. What Starr needs to supply is a more systematic account of how to reconcile religious liberties with an ever-broader sweep of state regulations; to do that, he would have to defend the free exercise of religion so long as its practices do not cause demonstrable harm to third parties, which is a far cry from the general principle of equality to which he appeals.
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