CHAPTER 11

Counterrevolution, Part II: Religious Freedom

Pages ago, in the first chapter, we confronted a question in two versions. We first took note of Pliny’s question (and Tertullian’s), raised almost two millennia ago: Why did the Romans persecute and often execute people just for being Christian—even though (as Tertullian insisted) the Christians sustained and even prayed for the emperors, the legions, and other Roman authorities and institutions?

After surveying the nature of Roman religion and its differences from Christianity, we considered answers to late antiquity’s version of the question in chapter 6. The Romans could have, and sometimes did, tolerate Christianity. And yet Roman persecution of Christians, it turned out, was not merely gratuitous or malicious. That is because, despite the Christians’ sincere protestations of loyalty, in a variety of ways Christianity was subversive of the Roman city, or of the kind of political community that the Romans were striving to maintain. Persecution, if not exactly necessary or commendable, was at least an instrumentally and symbolically rational response to that subversive force.

The second, less violent version of the question arises in America today, posed by people like lawyer and scholar Douglas Laycock. Why do proponents of an antidiscrimination agenda bring lawsuits against marriage counselors, wedding photographers, florists, and others who are religiously opposed to same-sex unions, even when the services offered by these professionals are readily available from other providers, and even though no sensible same-sex couple would actually want the services of a provider who is religiously opposed to their union? Generally libertarian in his commitments, Laycock criticizes this litigating zeal as a manifestation of intolerance—an accusation he extends to Christians who support laws regulating sexual conduct they regard as immoral. We considered the issues of sexuality and law in the previous chapter and observed how, by embodying Christian or conversely pagan norms of sexuality, laws are important constitutive symbols expressing and constructing the community along Christian or pagan lines. It is now time to take up the question we started with.

So, why do LGBT advocates seek to impose sanctions on religious traditionalists even when these traditionalists’ services are neither needed nor desired? Is such litigation a manifestation of intolerance, as Laycock suggests? And even if we stipulate that it is, does this label actually illuminate anything? What is the explanation for this “intolerance,” if that is what it is? Why would people take the time and trouble to be affirmatively intolerant in this way?

These questions place us squarely in the middle of one of the major controversies of our time—the controversy over religious freedom. For most of American history, at least since the adoption of the Constitution, religious freedom was a commitment piously embraced (if imperfectly honored) by nearly all citizens, even though the meaning and implications of that commitment were often energetically contested.1 Today things may appear to be different. Many citizens, activists, and politicians on one side of the cultural and political divide (as well as some critics, like Laycock, who are not generally on that side of the divide) perceive activists, politicians, and scholars on the other side of the divide as being indifferent or even hostile to religious freedom. “For the first time in nearly 300 years,” Laycock argues, “important forces in American society are questioning the free exercise of religion in principle—suggesting that free exercise of religion may be a bad idea, or at least a right to be minimized.”²

Typically, though, such characterizations are rejected, indignantly.³ Virtually everyone at least purports to be in favor of religious freedom; few admit to being opposed to it. So, who is right? What exactly is going on in these cultural, legal, and political battles over religious freedom?

The preceding discussions will already have suggested the overall response to be offered in this chapter. The contemporary fight over religious freedom is one battleground—a central one, as it happens—in the larger and essentially religious struggle to define and constitute America. The practical reality, of course, as with most such struggles, is that the conflict is confusing and pervasively confused: it is one in which, to enlist again Matthew Arnold’s metaphor, “ignorant armies clash by night.”4 So any assessment of the issue will necessarily seek to discern and impose a clarity that is to some extent artificial, as theorizing characteristically does. With that caveat, here is a succinct description.

One side in the struggle favors a conception of religious freedom that is consistent with—and thus symbolically expressive of, and thus to an extent constitutive of—a city or a political community that respects and is open to transcendence. The other side, guided by a different civic vision, seeks to close that opening. In sealing off the city against transcendence, though, this side is not opposed to religion, or even to transcendent religion. Not necessarily, anyway, and not for now. Nor are actors on that side of the divide necessarily opposed to religious freedom. But they work to keep the troublesome, transcendent sort of religion out of the public square⁵—outside the inner city walls, so to speak—and thus to maintain a public square whose commitments are confined to the satisfaction of “interests” and to immanently sacred values.

They seek, in other words, to repudiate the generically, implicitly Christian city that Americans have inherited—the one the Supreme Court recognized when in 1892 it declared that “we are a Christian nation”⁶—and to reestablish a city with virtues, sensibilities, and a civic character (including an understanding of religious freedom) that could more aptly be described as . . . pagan. And they perceive that transcendent religion within the public square is subversive of such a city in ways analogous to those in which the Romans perceived, correctly, that Christianity was subversive in classical times.

In sum, the contemporary battle over religious freedom is a sort of microcosm of the current and perennial struggle between transcendent and immanent religiosities, and an attempt to roll back the Christian revolution of the fourth century.

Religious Freedom, American Style

Political polemics and even academic discussions sometimes address “religious freedom” as if it were some sort of Platonic form with an identifiable and monolithic essence that a person could either approve or oppose. This essentialist, for-it-or-against-it way of thinking may simplify (and polarize, and thereby energize) discussions. But it fails to acknowledge the diverse ways in which governments have tolerated, respected, and sometimes promoted or, conversely, have discouraged, restricted, and even prohibited different forms of “religion.”7

Although it is artificial to think of religious freedom as a unitary commitment that we either support or oppose, we can talk about political arrangements that are more or less conducive to a range of ways of living in accordance with people’s diverse understandings of the sacred. And we can discern different general approaches or strategies calculated to enhance or constrict this sort of freedom. In America, as it happens, the dominant overall approach to diversity in religion has traditionally emphasized two central themes or strategies, which we can describe as “nonestablishment” and “accommodation.”

The first of these themes is usually associated with the First Amendment’s establishment clause (“Congress shall make no law respecting an establishment of religion . . .”); the second is often tied to that same amendment’s free exercise clause (“. . . or prohibiting the free exercise thereof”). The preceding chapter touched on one aspect of the nonestablishment theme—the constitutional doctrine developed by the Supreme Court that in recent decades has forbidden government to “endorse” religion.⁸ By contrast, our primary focus through much of this chapter will be on the second of these themes—the accommodation theme. But we will need to take occasional notice of the first theme as well. In doing so, we will see how a version of nonestablishment may be working together with rising opposition to religious accommodation to bring about a revival or reconstruction of a civic community aptly describable as “pagan.”

The Accommodation Strategy. The central idea animating the accommodation strategy is basically this: government should respect people’s religious commitments, and should make an affirmative effort to avoid burdening or interfering with those commitments. Put differently: government should affirmatively try to leave space for people to live in accordance with their diverse understandings of the sacred. So if a particular law would require a person or group to violate a sincerely held religious commitment, then a just and humane government will, if reasonably possible (because sometimes it will not be reasonably possible),9 find ways to excuse compliance by those people whose religion would be burdened.

Probably the best-known example involves religious pacifism and military service. Quakers have been a discernible presence in American life since colonial days. And Quakers are known to have a sincere religious objection to participating in war. So if there is a practically feasible way to excuse Quakers (and other sincere religious pacifists) from serving in the military, then that is what the government should do. Or at least so an accommodationist understanding of religious freedom would admonish.

Once again, this is not the only stance a government might take toward religion, nor is it even the only approach that might be described as respecting religious freedom.¹⁰ For example, a government might aspire to be simply agnostic or neutral toward religion—neither pro nor con. So the government would leave people free to live in accordance with their various faiths so long as no positive secular public policy is implicated, but it would disclaim any obligation to accommodate religious practices that happen to bump up against some public interest or policy. This sort of agnostic or neutral stance might be described as respecting religious freedom, at least in an attenuated sense, insofar as diverse religious faiths and practices are at least presumptively permitted, not targeted for disfavor or persecution. This was, arguably, the sort of approach favored by John Locke and by Roger Williams—usually counted as friendly figures in the development of religious freedom.11 The accommodationist position goes further, however, treating religion as something valuable that government should affirmatively respect and, if reasonably possible, look for ways to avoid interfering with.¹²

And in fact, accommodation has been the typical American approach to religious diversity. For about three decades in the twentieth century, the constitutional doctrine of the First Amendment’s free exercise clause, as expounded by the Supreme Court, explicitly embraced a commitment to religious accommodation. At least as understood by most lawyers and scholars,¹³ the doctrine mandated that people whose religion would be burdened by compliance with state or federal law should be exempted unless the government had a “compelling interest” in their compliance that could not be achieved in some less restrictive way. This exemptions doctrine was officially articulated in 1963 in a case called Sherbert v. Verner,¹⁴ and the doctrine persisted until it was renounced by the Court in 1990 in Employment Division v. Smith,¹⁵ the much-discussed “peyote case.”

Given these judicial markers, commentators sometimes suggest that the accommodation strategy prevailed only during a relatively short period of American history.¹⁶ But this characterization greatly understates the historical scope and importance of the accommodation approach. For much of the nation’s earlier history, states were the primary locus of governance, and many states built religious accommodation requirements into their state constitutions.¹⁷ Legislators in the early republic also recognized the wisdom and the justice of trying to accommodate religious dissenters; they looked for ways to excuse Quakers from various legal requirements such as oaths, removal of hats in court, and military service.18 In addition, judges supported and practiced religious accommodation; they interpreted constitutional commitments to mean that sincere religious objectors should be excused from complying with laws that would require them to violate their religious obligations. In one early New York case, for example, a judge excused a Catholic priest from revealing information about a crime that he had heard in confessional.¹⁹

Thus, as Paul Horwitz observes, “accommodation of religion is an aboriginal feature of American pubic law. From the earliest days of the Republic, exemptions from legally imposed burdens on religious belief and practice ‘were seen as a natural and legitimate response to the tension between law and religious conviction.’ ”²⁰ To be sure, there were all along differences of opinion about whether and when exemptions should be afforded, and about whether exemptions should be granted by legislators or judges. The commitment to accommodation never commanded unanimous support.²¹ Even so, the value and the justice of accommodation were widely and repeatedly acknowledged from the outset of the republic.

The major authority apparently contradicting this interpretation is the nineteenth-century case of Reynolds v. United States.²² In this and two follow-up decisions,²³ the Supreme Court rejected the claim of Mormons, or members of the Church of Jesus Christ of Latter-day Saints, who contended that laws prohibiting the practice of plural marriage infringed their freedom of religion by compelling them to violate what Mormons at that time accepted as their religious obligation to enter into polygamous marriages. Reynolds, it is conventionally said, interpreted the First Amendment’s free exercise clause to protect only religious beliefs, not religious conduct.24

But Reynolds is a more complicated decision than the standard description conveys. Indeed, it might be said that there are effectively two majority opinions in Reynolds. One opinion does contain the “belief/conduct” language that most lawyers and scholars have seized upon.²⁵ If this were the sole rationale for the decision, however, the Court could and should have ended its analysis at that point. Mormons are free to believe that they should practice plural marriage, the Court would have said, but they are not legally free to act on that belief. End of discussion.

In fact, however, the Court did not finish up with this conclusion; instead, it went on to argue, at length, that polygamy was a serious evil that could not be countenanced in America’s free society.²⁶ Polygamy undermines the sanctity of marriage, the Court contended, which is vital to American institutions.²⁷ And polygamy promotes an undemocratic authoritarianism by embracing the oppressive “patriarchal principle.”²⁸ (This argument in Reynolds may come as a surprise to those who suppose that nineteenth-century American law and society were thoroughly and unapologetically committed to patriarchy.) These arguments about social harm would seem to be wholly superfluous if the Court was indeed committed to the view that only religious belief, not conduct, is protected by the free exercise clause. But the Court’s arguments were nicely congruent with the accommodation/balancing strategy sometimes said to have developed only later in the twentieth century.

Clark Lombardi contends that this second Reynolds opinion—the one that insisted that polygamy was an evil so serious that it could not be accommodated—resonated with views commonly expressed by nineteenth-century judges, legislators, and scholarly commentators.²⁹ Many courts and commentators of the period, Lombardi argues, recognized an obligation to accommodate religion (though others did not).30 But proponents of accommodation acknowledged that legal exemption could not be extended to excuse egregious or intolerable evils. One standard example of an intolerable evil (used even before the Mormon religion came on the scene) was polygamy.³¹ The Reynolds decision fit precisely into this familiar pattern; it listed human sacrifice as an example of an evil so grave that it could not be accommodated,³² and it argued that polygamy was another such instance. This section of the Reynolds opinion thus appears to presuppose a presumptive obligation to accommodate religion.

To be sure, this second theme in Reynolds did not erase the first theme—the one suggesting that free exercise protects only belief, not conduct. That interpretation, along with one of the principal arguments that the Court gave for it (namely, that excusing religious conduct would make every citizen “a law unto himself”),³³ was in a sense ahead of its time; we will return to the argument shortly. For now, the important point is that Reynolds in no way negates the fact that from the outset of the republic, a commitment to religious accommodation, though not uncontroversial, was a prominent theme—arguably the central theme, along with nonestablishment—in the American approach to religious diversity. That theme persisted and was elaborated more explicitly by the Court in the twentieth century.³⁴

Then, in 1990, in Employment Division v. Smith, the so-called peyote case, the Court disavowed the accommodation doctrine as a constitutional requirement in favor of a rule holding that so long as a law is religiously “neutral” and “generally applicable,” no accommodation is constitutionally required. At the same time, however, the Court explicitly authorized legislatures to mandate religious accommodation as a matter of statute.35 And indeed, legislatures—including Congress and numerous state legislatures—promptly did just that (as in fact they had already long been doing).³⁶ Congress, for example, adopted a law called the Religious Freedom Restoration Act that essentially reestablished the exemptions doctrine as a statutory matter. That act was adopted with virtually unanimous approval in Congress, and with the support of a range of diverse groups from the ACLU to the National Council of Churches.³⁷ In signing the statute, President Bill Clinton delivered an eloquent address praising religious freedom as “perhaps the most precious of all American liberties” and urging Americans to “fight to the death to preserve the right of every American to practice whatever convictions he or she has.”³⁸

Such statutory accommodation requirements continue to be enforced by courts to this day.³⁹ (Although, for reasons we will consider, they are increasingly embattled, as the vehement response to recent efforts to enact religious accommodation provisions in several states reflects.)

The Transcendent Character of the Accommodation Strategy. But why should government recognize any presumptive obligation to try to accommodate religion? As it happens, the accommodation strategy is an approach with a discernibly Christian character. Or, rather, it is an approach oriented toward recognition of a transcendent authority—a recognition that, though hardly limited to Christianity, was part of the legacy that Americans inherited from Christianity. This Christian or transcendently religious character of the accommodation approach is apparent both in the historical antecedents that led up to the approach and in its inherent logic or structure.

First, history. The accommodation approach has its historical roots in distinctive Christian ideas that developed in the West over the centuries since Jesus first proclaimed the Christian gospel to a small band of disciples. This development has been discussed at length elsewhere.⁴⁰ What follows is a shamelessly condensed synopsis.

The New Testament narrates how Jesus, in response to a question about the permissibility of paying taxes, declared that there are two authorities that we are obligated to respect: the temporal authority, but also the spiritual authority. “Render unto Caesar the things that are Caesar’s,” Jesus enjoined, “and unto God the things that are God’s.”41 As we saw in chapters 5 and 6, the dualism inherent in this view was elaborated by later Christian thinkers, including by Augustine with his doctrine of the “two cities.” The practical and legal implications of this dualism took centuries to develop; indeed, those implications continue to be worked out by Christians in the context of the political challenges of their contingent and ever-changing situations. But the first major political product was a commitment to “freedom of the church” from state control—an idea that began to be asserted by bishops almost immediately after the official recognition of Christianity.

Thus, in the fourth century the emperor Constantius attempted to impose an Arian version of Christianity on the church. Constantius, like his father Constantine, seemingly supposed that the emperor would continue to exercise the control over religion that emperors had always enjoyed. Now, however, orthodox bishops resisted, sometimes incurring the emperor’s wrath.⁴² In the sixth and seventh centuries, church leaders adopted a similar (and sometimes fatal) resistance to imperial efforts to impose the monophysite and monothelite doctrines on the church.⁴³ For his opposition to the monothelite doctrine, for example, Maximus the Confessor was tortured and exiled, after being silenced by having his tongue and right hand cut off.⁴⁴ It was during this period that Pope Gelasius articulated his often-quoted declaration that “Two there are”—namely, two authorities.⁴⁵

This commitment to freedom of the church, or libertas ecclesiae, was developed more systematically and aggressively in the “papal revolution” beginning in the eleventh century.⁴⁶ The church’s resistance to secular political control produced a torrent of polemics and manifestos and legal and political theories.⁴⁷ The struggle also produced its epic battles—the confrontation in the empire between Henry IV and Pope Gregory VII, the clash between Henry II of England and Archbishop Thomas Beckett, the conflict between Henry VIII and the deeply devout former lord chancellor Thomas More. And the struggle produced its villains—including, from the pious perspective, all the aforementioned Henrys—and its sainted martyrs, including both of the aforementioned Thomases.48

Then, following the effective takeover of the church by monarchs in England and elsewhere in the sixteenth century, and now more under the direction of Protestant Christians, the “freedom of the church” modulated into the “freedom of conscience”—conscience becoming a sort of “internal church” as the new locus of God’s essential interaction with humans.⁴⁹ Deference previously given to the church as an independent jurisdiction was extended to the individual conscience; and indeed, early proponents of the freedom of conscience sometimes defended the commitment in explicitly jurisdictional terms. The government, they argued, had no jurisdiction over the conscience, which was Christ’s kingdom.⁵⁰ This newly vigorous commitment to conscience was energetically expounded by seventeenth-century figures like Roger Williams, William Penn, and John Locke.⁵¹ Later, in the eighteenth century, it was taken up by American founders, including James Madison and Thomas Jefferson.

In this way, the Christian commitment to dual jurisdictions—Caesar and God—wound its meandering way into the American understanding of religious freedom. Madison carefully developed the argument that our duties to “the Creator” are prior to our duties to society; hence, matters of “religion” are “wholly exempt from [the] cognizance”—or, in other words, the jurisdiction52—of state and civil society.⁵³ Somewhat more loosely and grandly, Jefferson proclaimed that “Almighty God hath created the mind free” from government regulation in matters of religion.⁵⁴ Both arguments expressly rest on the premise that there is a higher authority—“the Creator” and “Governor of the Universe” (Madison) or “Almighty God” (Jefferson)—on whose jurisdiction earthly governments should not intrude. The classic American statements were thus remote progeny of Jesus’s “Render unto God [and thus, by implication, not to Caesar] the things that are God’s.”

But the Christian character of the American approach is not merely genealogical; it is also logical or structural. Once again, the basic idea of religious accommodation, as it has been understood and practiced in America, is a modern expression or instantiation of the same kind of political dualism evident in the “two cities” doctrine of Christian thinkers like Augustine, or in Jesus’s teaching that we have obligations to a temporal authority—Caesar, or the state—but also to a higher and transcendent authority, or God. As discussed, the recognition of that higher authority was precisely the basis of the commitment to religious freedom as articulated by Madison, Jefferson, and others. Even if Madison and Jefferson had never heard of Jesus or Christianity, in other words, or even if they had consciously rejected Christianity—as it can be argued that they (or at least Jefferson) did⁵⁵—we could still say that their approach to religious freedom reflected the same dualist logic and the same deference to the transcendent that had been central to Christian thinking.

Not surprisingly, the American version of the dualist theme had its distinctive character. In the Middle Ages, for example, the higher authority or God was represented by the church—by the church, in the singular—which was viewed as an independent jurisdiction, or a sort of embassy of the heavenly kingdom, that the state was obligated to respect. If a priest was accused of committing a theft or a rape, the state could not simply apprehend the culprit and apply its law; it was required to turn the offending cleric over to the church, to be tried in an ecclesiastical court56—just as today an offending foreign diplomat might be turned over to the nation that he or she represents. Later, as conscience came to assume the role of the church as the locus of communion between God and human beings, deference was extended to the conscience. In England, nonetheless, and in some American states, this sort of claim of conscience would still be asserted against the backdrop of the church—of the officially recognized and established church, which itself propounded some orthodoxy or official version of the higher truth.

As American constitutional understandings developed in the late eighteenth and early nineteenth centuries, by contrast, no such institution and no such orthodoxy were recognized. (This was, of course, the other major American theme—the nonestablishment theme.) The acknowledgment here was of the reality of transcendence (or, in a more modest and agnostic version, of the possible reality of transcendence).⁵⁷ It was deliberately not a recognition either of any particular institution deemed to represent that transcendence or of any official or “orthodox” version of the transcendent truth. In that important sense, the American position—unlike, say, the British position—was not specifically or exclusively Christian. Influenced by the Christian legacy, though, the American position recognized the jurisdiction of the transcendent, or of “religion,” over which civil society and government had no “cognizance,” as Madison put it.

The consequence of this acknowledgment of transcendence in conjunction with the rejection of an established religion or orthodoxy was that within wide bounds it was left to individuals (and to associations or churches with which individuals might freely choose to affiliate) to judge what the transcendent truth and its corollary obligations might be. The government’s obligation was merely to refrain from interfering with—or, put positively, to accommodate—matters within that jurisdiction over which the state had no authority, or no “cognizance.”

In sum, both in its historical roots and in its inherent structure or logic, the characteristic American commitment to religious accommodation had, and has, a Christian or transcendently religious character. It is based on an acknowledgment of a transcendent reality, or at least of the possibility of such a reality.58 In that sense, the accommodationist approach to religious freedom not only grows out of a Christian history and conception, it also betokens a community, or a city, constructed and constituted not on Christianity per se but on a conception of transcendence that was a legacy of the Christian tradition. Much in the way that public symbols like those discussed in the preceding chapter, and also laws regulating sexuality, operate as symbols that construct and express the kind of community that we are, the accommodationist approach to religious freedom is more than just a strategy for dealing with religious diversity. It is a symbol—a constitutive symbol, a transcendently religious constitutive symbol—of the kind of community America is. This is a community, as Lincoln and now the Pledge of Allegiance put it, that is “one nation under God.”

The Turn from Transcendence

Which is precisely the underlying problem, at least for citizens who reject a Christian or transcendently religious conception of American community.⁵⁹ Thus, it should hardly be surprising that as transcendent religiosity has come to be challenged and to a significant extent displaced by some combination of positivistic secularism and a more immanent religiosity, the historic commitment to religious freedom, at least in its familiar American version favoring religious accommodation, has come to be increasingly embattled.⁶⁰ It is challenged by a different conception of religious freedom resonating with a different conception of community—one that rejects the “two cities” position (with its acceptance of transcendence) in favor of the city. Of the fully and exclusively sovereign city,⁶¹ we might say—a city that, much like the ancient pagan city, can recognize and celebrate immanent sanctities but is unwilling as a public matter to recognize or defer to any higher or supposedly transcendent authority.

Against Accommodation. Religious accommodation, as noted, has never been uncontroversial, but over the last decade or so it has been subjected to more vigorous and sustained opposition than in the past. Not only is religious accommodation not constitutionally required, critics argue; it is also profoundly objectionable and constitutionally problematic.62 At present, the outcome of this conflict is very much in the balance.

The opposition to religious accommodation has become conspicuous and pervasive; for now, one illustrative instance may be sufficient. In the spring of 2015, Indiana enacted a law mandating presumptive accommodation of people whose religion was burdened by state laws unless the state had a “compelling interest” in requiring their compliance. And, as they say, all hell broke loose. The law was virtually word-for-word identical to statutes adopted some years earlier in approximately twenty other states and also to the federal Religious Freedom Restoration Act that, as described above, was enacted in 1993 with virtually unanimous congressional support and with the effusive praise of President Bill Clinton. But in the twenty-plus years since that momentary feel-good effusion of national consensus, the political climate had changed, drastically. This time around, Indiana’s religious freedom law had its supporters, to be sure, but it was vehemently denounced by a veritable legion of politicians, pundits, government officials, scholars, CEOs, late night talk show hosts, athletic directors, and major corporations. Boycotts were threatened. Governors and mayors announced that public officials would not be reimbursed for travel to do business in the Hoosier state. And Indiana promptly issued its “mea culpa” and amended the offending law into ineffectuality.⁶³

The deluge of denunciation was remarkable for its ferocious, almost frantic, quality, so foreign to the cool pragmatism that supposedly distinguishes Americans, especially those of a “secular” disposition. The campaign was notable as well for its apparent mendacity: the law provoked, as Douglas Laycock observes, “a massive, and massively false, propaganda campaign from the opponents.”64 Although the Indiana law was routinely castigated as granting an open license to discriminate against gays—or was simply described as Indiana’s “antigay” law—defenders pointed out that the law provided no such license and that none of the dire consequences confidently predicted for the Indiana law had occurred with the federal law or with the substantially similar laws in other states.⁶⁵ In fact, these laws had not been interpreted to license discrimination against gays, and very few claimants had even tried to use them in this way.⁶⁶

But this sort of sober appeal to facts appeared to have no impact at all on the critics. It was hard to avoid the conclusion that their campaign was only secondarily about remedying real, concrete deprivations likely to be suffered by real people. Its primary purpose was different, larger, more evangelical, and it was being pursued with an evangelical zeal. The campaign was about affirming righteousness and stamping out wickedness, and the Indiana law provided a convenient symbol or focal point; the law was more important for what it symbolized—or for what, construed with an advocate’s ample license, it could be made to symbolize—than for its actual legal and practical effects.

This motivation was strikingly manifest in the massive public reaction to a reported statement by the owner of a pizza shop, Memories Pizza, who said that his religious convictions would preclude him from catering a same-sex wedding reception. One can imagine a calmer world in which the reaction to such a statement would be “What’s the big deal?” As it happened, this particular pizza shop had reportedly not catered weddings anyway. Nor are pizza providers in short supply; television commercials for aggressively competitive pizza vendors seem almost as ubiquitous as commercials for automobiles, beer, or remedies for erectile dysfunction. And yet in the overheated context of the Indiana controversy, the pizza owner’s statement provoked a torrent of outrage and protest, forcing the business to close temporarily—but also an outpouring of support, as sympathizers raised over $800,000 for the beleaguered business.67 Evidently, the disagreement was not about access to pizza. It was about a conflict between justice and injustice, between good and evil—as (differently) understood by the opposing partisans.

The conflict generated by the Indiana law has been replayed again and again since then—with generally similar results—in other states that have attempted to enact religious accommodation requirements. Similar conflicts have arisen around applications of the federal Religious Freedom Restoration Act, as in the much-discussed Hobby Lobby and Little Sisters of the Poor cases.⁶⁸ As all these conflicts reflect, the idea that government ought if reasonably possible to accommodate people’s religious commitments, which as recently as 1993 appeared to enjoy almost universal support, is now deeply contested and fiercely resisted—at least when the substantive policy at stake involves contraceptives or nondiscrimination. (When the substantive issue is further removed from “culture war” controversies—involving, for example, the desire of a Muslim prisoner to wear a short beard—accommodation can still command an almost effortless consensus.)⁶⁹

The Constitutional Arguments. In the popular debate, as the Indiana experience indicates, the opposition to particular religious accommodations may be expressed in aggressively critical characterizations (or mischaracterizations) of the legal provisions that the critics oppose. In the courts and academic journals,⁷⁰ by contrast, the opposition has typically been framed in terms of variations on two partly overlapping⁷¹ objections, which we can call the “nonestablishment” objection and the “equality” objection. The first of these objections, drawing on modern establishment clause doctrine that forbids government to act in ways that have “a principal or primary effect of advancing religion,”72 contends that accommodating religious believers, or exempting them from burdensome laws, has the impermissible effect of advancing religion. The second objection argues that the religious accommodation violates the fundamental American commitment to the equality of citizens by treating religious dissenters more favorably than nonreligious dissenters.

Whether one finds these arguments persuasive seems to depend mostly on whether one antecedently favors the conclusion to which they lead. Neither argument is at all compelling; conversely, either is sufficiently plausible to justify rejection of accommodation of religion if that is the conclusion one wants to arrive at. Thus, with respect to the nonestablishment objection, it is surely possible as a matter of semantics to describe accommodation as a way of “advancing” religion. And yet the claim that the establishment clause forbids this sort of accommodation—or, if you like, of “advancing”—is far from compelling, and quite alien to the American tradition, as discussed above. Thus, recent scholarship persuasively shows that modern establishment doctrine goes well beyond anything contemplated for the clause by its enactors, who likely thought of themselves as simply keeping the national government out of the domain of religion.⁷³ And even if we accept modern doctrine forbidding government to “advance” religion, the courts for decades distinguished between “advancing” and “accommodating” religion; the latter, courts maintained, was not forbidden and indeed was up to a point constitutionally commanded. To be sure, an accommodation might go too far, in which case it could impermissibly advance religion.⁷⁴ But accommodation per se was not unconstitutional; indeed, it was to be encouraged.⁷⁵

The equality argument, likewise, can seem persuasive and even compelling if you start off agreeing with its implicit premise and with the conclusion it seeks to support; if you are not antecedently so predisposed, the argument will seem blatantly question begging. The most famous kind of accommodation—an exemption from military conscription for religious pacifists—can serve to illustrate the objection, its rhetorical force, and its question-begging character. Suppose the government exempts Jacob, a Quaker, from serving in Vietnam because he has a religious objection to war. Meanwhile, Peter, who has a carefully considered moral but not religious objection to war, is required to serve (and, possibly, die). Doesn’t this preferential treatment of Jacob over Peter treat the two men unequally, or “discriminate” against Peter (as Ronald Dworkin puts it)?76 More generally, doesn’t the differential treatment of religious and nonreligious conscientious objectors violate American commitments to treating citizens equally?

Upon a little reflection, however, the initial rhetorical force of the straightforward “equality” objection dissipates. Equality means that “like cases should be treated alike”; it obviously cannot mean that all citizens must be treated in the same way.⁷⁷ In fact, virtually every law inevitably and necessarily treats people differently—or, if you want to put it that way, “discriminates.” Virtually every law, that is, defines a class of people (e.g., people who are over age eighteen, people who suffer from a disability, people who earn more than or less than a certain income, etc.) to define a status, impose a penalty, or confer a benefit; those within the legally defined class gain the benefit or incur the burden, while those not in the defined class do not. That is how laws work and achieve their purposes—by distinguishing (or “discriminating”) among classes of people and treating them differently. The question, always, is whether there is sufficient justification for a classification drawn by the law. Equality means, and can only mean, that the law must not classify people for different treatment for no good reason, or without adequate justification. Or, as lawyers say, laws must not treat “similarly situated” people differently.78

With respect to religious accommodation, therefore, the crucial question is whether there is any good justification for treating people with a religious objection to complying with a law differently from people with a sincere but nonreligious objection. Maybe there is, maybe there isn’t: the question is surely debatable. The fact that the First Amendment explicitly singles out religion as a special legal category suggests that differential treatment does not in itself violate constitutional equality requirements. In any case, the straightforward argument that exempting religious believers violates equality because it treats them differently, or because it “discriminates,” is merely a conclusory form of begging the essential question.

Still, what is the answer to that question? (Because “The Constitution—or the statute—says so; we don’t know why” is not a very satisfying or powerful response.) People’s conflicting answers to the question will naturally reflect their underlying conception of what kind of community we live in, or aspire to live in.

Thus, in a political community that recognizes the reality or at least the possibility of a transcendent authority, it will seem that someone who thinks God forbids him or her to do something is differently situated from someone who has some other, sincere but nonreligious reason for not wanting to do something. Similarly, a government that defies what a transcendent authority is thought to command would be in a different and more unsatisfactory position than a government that merely declines to recognize some other sort of potentially meritorious objection.79

And in fact, as we have seen, Jefferson’s and Madison’s arguments for religious freedom were explicitly grounded in the recognition of such a higher authority, thus implicitly reflecting the transcendent assumption in their conception of the American political community. A similar conception of the community as under or subject to a higher authority has been reiterated repeatedly through the course of American history. The Declaration of Independence invoked the authority of “Nature, and nature’s God.” In his revered Gettysburg Address, Lincoln contended that this is a nation “under God” (although, in faintly Orwellian fashion, contemporary progressives have sometimes tried to excise the phrase).⁸⁰ “We are a religious people whose institutions presuppose a Supreme Being,” declared Justice William O. Douglas for the Supreme Court as recently as 1952.⁸¹ “In God we trust,” proclaims the national motto, printed on all our dollar bills. Over and over and over again, the nation’s acknowledgment of a higher authority has been expressed.

So long as this conception was widely accepted, the equality objection to religious accommodation carried little force, including in the courts; reasonable accommodation of religion was not only permissible but constitutionally mandated (although, as noted, it could go too far and thereby amount to an “establishment” of religion). Conversely, as that older conception of the community as grounded in an acknowledgment of transcendent authority has come to seem increasingly problematic, there has seemed to be little reason to distinguish or favor objections grounded in an appeal to such an authority; and the equality argument has accordingly come to seem more compelling. Hence the recent, vigorous opposition to religious accommodation, as evidenced in Indiana and other situations.

A Law unto Himself? The altered conception of community away from the transcendent conception is reflected in a curious comment tossed out by the Court in Reynolds, the polygamy case, and taken up more earnestly over a century later in Employment Division v. Smith, the peyote case that repudiated the idea of constitutionally mandatory religious accommodation. In Reynolds, the Court remarked that it would be unacceptable to exempt religious conduct from a law burdening such conduct because to do so would make the religious objector “a law unto himself.”82 The comment may be understandable in a context in which the Court had rarely declared federal laws unconstitutional and was unfamiliar with the idea of “balancing” or “weighing” interests to declare partial exemptions from enacted laws.⁸³ By 1990, however, over a century later, when Smith was decided, that idea had become commonplace. Nonetheless, in rejecting the idea of mandatory religious accommodation, the Court excavated the language from Reynolds and declared that mandatory accommodation would effectively and unacceptably make every man “a law unto himself.”⁸⁴ Indeed, the majority opinion repeated the claim three times.⁸⁵

On its face, this claim—namely, that religious accommodation renders the accommodated religious believer “a law unto himself”—seems patently and indeed doubly spurious. From the believer’s standpoint, the Court’s claim gets the situation exactly backward. After all, the believer is asserting precisely that he is not a law unto himself, but rather is bound by a higher law or obligation—something like the law of God—that is independent both of government and of his own preferences. If instead we look at the matter from the Court’s perspective, or the government’s, the claim again seems mistaken. If the Court were to recognize and grant the exemption, in other words, the believer would be excused not because he is a “law unto himself” but, on the contrary, because the Court itself chose to craft or interpret the community’s own law—in these cases, the free exercise clause of the First Amendment—to authorize the exemption.

From either the believer’s or the government’s perspective, in short, a “law unto himself” is precisely what the conscientious objector is not. He is, rather, subject at least to the law of the land (which the Court retains the authority to construe and apply) and, in his own eyes, to the law of God as well.

More generally, both legislatures and courts routinely create exceptions or exemptions to laws, without any apparent concern about rendering people who come within the exceptions “laws unto themselves.” A legislature creates an exception to a minimum wage law, or to an antidiscrimination law, for small employers with fewer than some specified number of employees.86 Or the legislature enacts a homicide statute but creates an exception for self-defense.⁸⁷ Or the Supreme Court interprets the Constitution to forbid particular kinds of official conduct—unwarranted detentions, perhaps, or entrapments by police that induce suspects to commit crimes—but also creates an exception of “qualified immunity” shielding from liability some officials who violate the constitutional standards.⁸⁸ Critics are unlikely to attack these exceptions on the ground that they make people covered by the exceptions “laws unto themselves.” And if that criticism were raised, the answer would be obvious: “No, the characterization is simply and flatly wrong. The exceptions themselves are as much ‘law’ as the general rules are, and people within the exceptions are as much subject to the law as people not within the exceptions.”⁸⁹

The same response should be available, it would seem, if the law, adopted by “we the people” or by Congress and interpreted by the courts, authorizes an exemption for religious believers whose religion is burdened by a particular legal requirement or prohibition.90 Religious objectors would be exempted under that law. No one would be “a law unto himself.”

Why, then, would both the Reynolds Court and the Smith Court express a profound concern about making a religious believer a “law unto himself”? Looking more closely at the question, though, we may discern a (somewhat strained and scholastic) sense in which the Courts’ characterization can seem almost correct.

After all, the religious objector is asserting that he is subject to a higher law not made by the government. And he is asking the court to recognize and defer to that higher law—not in general, to be sure, and not for the government itself (the religious pacifist, for example, is not saying that the government is legally forbidden to wage war), but at least to the extent of excusing his own compliance with the government’s law in deference to that higher law. Perhaps most importantly, the objector is asking the court and the government to defer to the higher law as interpreted and understood by him (the objector).

In a very loose sense, acceptance of this sort of claim might be described as rendering the dissenting religious believer a “law unto himself.” But whether or not that description is apt, the important point is that this kind of claim for an exemption is significantly different from other sorts of requests for exemptions. When a legislature chooses to create an exception for small businesses, or for people who kill in self-defense, the legislature is acting on the basis of this-worldly interests or values that it (the legislature) can assess, and it is creating an exception whose scope and content it fully defines. The legislature is not deferring to some higher authority or transcendent jurisdiction; much less is it deferring with the understanding that individual objectors, rather than the government, will get to determine what that higher authority or transcendent jurisdiction demands.

So the claim for religious accommodation is distinctive. Still, is there anything especially problematic about this distinctive sort of claim? Not under the traditional American approach to religion. That approach, as we have seen, resonates with a conception in which the political community does conceive of itself as subject to a transcendent authority—as “one nation under God.” And, as we have seen, the logical implication of that conception together with the decision to forgo any established church or official religious orthodoxy is that the determination of what the transcendent authority demands will be left to individuals. This is precisely the logic of Jefferson’s invocation of “Almighty God” who “made the mind free” and not subject to earthly authorities, and of Madison’s careful demonstration that every person’s first obligation (over which the state and civil society have no “cognizance”) is to God—an obligation, Madison stressed, that must be measured by the person’s own judgment.91

Indeed, as we have seen, the basic conception of the community as under or subject to a higher authority (from which the rest of the accommodation logic follows at least naturally, if not quite ineluctably) has been reiterated repeatedly through the course of American history. Conversely, as that conception of the community comes to be displaced by a secular conception—“secular” in the immanent and positivistic senses—the acknowledgment of such a higher authority will come to seem offensive, unacceptable, almost incomprehensible. Deference to a higher power will now seem an impermissible relinquishment of the community’s complete sovereignty.⁹²

In the exercise of that sovereignty, to be sure, a tolerant and humane community will feel free to “accommodate”—to soften the harsh force of its laws by granting exceptions or indulgences or dispensations or variances—on all sorts of grounds. It may exempt people from otherwise applicable laws on grounds of physical impairments, or economic hardship, or medical necessity, or on any number of other grounds. But a plea for accommodation based on the claim that the community itself is subject to a higher authority? That sort of plea will stand out as distinctive, and distinctively objectionable. The community may choose to accommodate people, but it is the community—the sovereign community—that will choose to extend or not extend such accommodation. It will not accommodate in deference to some supposed higher authority.

Unless it is taken as simply false or nonsensical, the Supreme Court’s objection to making a religious believer “a law unto himself” is best understood as a confused expression of that conception—of a conception of community that declines to acknowledge any higher authority.93 This shift in conceptions also helps to account for the increasing opposition to religious accommodation. In Smith, to be sure, the Court raised the “law unto himself” concern as an objection only to constitutionally mandated religious accommodation; the Court explicitly authorized legislative accommodation. But the logic (or illogic) of the “law unto himself” objection is not confinable to constitutional interpretation. Understood as a garbled expression of opposition to public deference to any higher or transcendent authority, the point should carry equal force in the legislative realm, and indeed in any aspect of the civic sphere. Hence, opponents of statutes (like the Indiana law) that would prescribe presumptive religious accommodation are simply taking the Court’s “law unto himself” concern to its logical conclusion.

And yet the opposition, once again, is not to accommodation per se. It is opposition to religious accommodation specifically—opposition to accommodation based on the distinctive claim that the state is subject to a higher or transcendent power. Like an ancient Roman paterfamilias who aspires to be fair-minded and kindly but who brooks no challenge to his ultimate authority within the household, the sovereign secular community may strive to be just and humane, and it may (and does) accordingly grant indulgences and dispensations—accommodations—of various kinds. But it will bristle at claims for accommodation that deny the ultimacy of its authority.

Transvaluation of Values: The Curious Career of “Freedom of Conscience”

That statement, however, requires qualification, or at least clarification. A political community that refuses to recognize any higher or transcendent authority might still honor even transcendently religious claims asserted by individuals—not out of deference to a higher authority, but out of solicitude for the individuals who assert them. Thus, even the more aggressive contemporary critics of special accommodation of religion are typically respectful of conscience. And they may allow that religious claimants for exemption might often be able to bring themselves within the category of freedom of conscience.94

The subordination of religion to conscience reflects a striking overall reversal—or “transvaluation of values,” so to speak—that is further indicative of a transformative shift in prevailing conceptions of the political community away from a transcendent and toward a more immanent conception. We can appreciate this transformation by considering three phases in the career of freedom of conscience. (This division into three phases simplifies a messier and more complicated history, obviously, but it is useful for expository purposes.)

Trading Places: “Religion” and “Conscience.” In the earliest phase, conscience is inherently religious, and freedom of conscience simply means “that government must ensure a free response by the individual called distinctively by the Divine within,”⁹⁵ as Marie Failinger observes. So “freedom of religion” and “freedom of conscience” are essentially synonymous and interchangeable ideas.96

In phase two, the concepts become severable; and insofar as they are distinguished, it is freedom of religion—not freedom of conscience—that the law seeks to protect. And on the pertinent premises, this assignment of priority to religion over conscience is entirely logical. The rationale for accommodating religion, once again, as articulated by figures like Madison and Jefferson, is based on deference to an acknowledged transcendent authority. “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” So if a person asks to be excused from complying with Caesar’s law but does not base the request on any appeal to God, or to a higher authority, then the rationale for exemption simply does not apply. In this vein, Michael McConnell argues that the framers of the First Amendment consciously distinguished between freedom of religion and freedom of conscience, and they chose to protect only the former.⁹⁷ As a historical matter, McConnell’s interpretation is debatable,⁹⁸ but if the framers did what McConnell thinks they did, they would have been acting in wholly logical fashion.

Even on these assumptions, though, “conscience” might seem close enough to religion that it still might receive legal protection through loose analogy and as a matter of legislative or judicial grace. Such a process is apparent in the much-discussed Seeger⁹⁹ and Welsh¹⁰⁰ draft exemption cases from the Vietnam War period. As enacted by Congress, the provision exempting “conscientious objectors” from military service had been explicitly crafted in theistic and transcendent terms.¹⁰¹ The Supreme Court nonetheless managed to extend the exemption to objectors who were morally serious but who were by their own account not theists; the Court achieved this extension by construing the statutory exemption to cover not only theistic convictions but also other convictions that had a “parallel [position]”102 in the lives of nontheistic objectors like Daniel Seeger and Elliott Welsh.

The decisions in Seeger and Welsh also reflect the subtle transition from stage two, in which religion is distinguished from and privileged over conscience, to a third stage in which conscience comes to be privileged over religion. On the face of the conscription law and of the Court’s opinions, it was still “religion”—theistic, transcendent religion—that was the primary object of the law’s solicitude; mere “conscience” not grounded in traditional and transcendent religion received protection by extension and analogy, so to speak. In a sense, “conscience” piggybacked onto its more pious sibling: theistic “religion.” And yet in treating the two as close kin, so to speak, or in treating nontheistic conscience as essentially equivalent to or “parallel” with more theistic commitments, the Court tacitly demonstrated that in its view, what mattered was not an individual’s actual or perceived obligation to a higher or transcendent authority—because in that respect theistic religion and nontheistic conscience were not similar—but rather the depth or subjective importance of a conviction in the individual’s life. It was only on such an assumption that theistic convictions and nontheistic “conscience” would be relevantly “parallel.”¹⁰³

Officially and formally, in short, transcendent religion was still the primary value and conscience was the dependent partner. But in substance, it was conscience that the Court respected and deferred to.

In a third phase, this reversal of what is primary and what is subordinate becomes open and explicit. The reversal is conspicuous in the position of those today who oppose religious accommodation but endorse freedom of conscience.¹⁰⁴ In this view, conscience is the primary value, and the legitimate object of the law’s respect and protection; religion is the dependent partner. The former relations are reversed. In Seeger and Welsh, or at least in the explicit law of those cases, “conscience” could claim protection only by casting itself as “religious,” or as having a “parallel position” to religion. Now, in this final phase, it is religion that can receive protection only by casting itself as conscience. And insofar as government or the courts grant protection to religion, they do so not in deference to any higher authority, but rather because religion has a sort of “parallel position” to that of conscience in the lives of religious believers. Now it is “religion” that must plead for the piggyback ride.

In fact, this essentially upside-down understanding unites many scholars and advocates today who appear to disagree (and who may think they disagree) about the obligation or permissibility of religious accommodation. Thus, contemporary scholarly debates in this field tend to center on whether there is justification for “special treatment” of “religion.”105 On one side, as discussed above, scholars who oppose religious accommodation say no—there is no adequate justification for giving special treatment to religion—but they may still be friendly to freedom of conscience. And they allow that religious claims might sometimes be recognized and respected—by placing themselves under the heading of “conscience.” On the other side, scholars who explicitly favor religious accommodation argue that there is adequate justification (such as the constitutional text itself) for giving special protection to “religion.”¹⁰⁶ At the same time, however, these ostensible supporters of religious accommodation may condition their support on the assumption that “religion” will be construed very broadly to encompass just about any nontheistic but existentially earnest belief or value that could be described as “conscience.”¹⁰⁷ Moreover, in justifying protection for “religion,” they rarely rely on the kinds of transcendent religious justifications that led Madison, Jefferson, and others to favor religious freedom in the first place; indeed, they may suppose that such justifications would be inadmissible in today’s pluralistic and “secular” civic society.¹⁰⁸ Instead, they typically rely on more purely humanistic rationales, such as the importance of religion in the lives of believers, or the association of religion with personal autonomy or personal integrity.¹⁰⁹ They rely, in other words, on the same kinds of rationales that contemporary thinkers are likely to give for respecting “conscience.” The labeling differs—and provokes apparent disagreement—but at bottom the positions are substantively very similar.

Conscience and the Immanent Sacred. All of which points directly to two residual questions that have been lurking around our discussion all along. First, what exactly is this “conscience” to which government should be respectful? If conscience is no longer understood in theistic terms as a response to obligations imposed by a transcendent authority, then what is it?110 And, second, why should “conscience” (whatever it is) be entitled to claim special respect and protection from the law, now that the law’s erstwhile favorite, “religion,” has lost that claim? The answers to those questions are indicative of the shift in conceptions of the community that we have experienced.

With respect to the definition of “conscience,” usage obviously varies. But the best answer, arguably, is that “conscience” refers to individuals’ judgments about and commitments to what they perceive as inviolable or “sacred”—if not to the “sacred” in a transcendent sense, then to the immanently “sacred.” And the position favoring “freedom of conscience,” or accommodation of conscience, suggests a conception of the political community in which the community remains sensitive to and respectful of at least that kind of sanctity. The continuing respect given to conscience even by opponents of “religious” accommodation thus suggests that the move away from a city that acknowledges a transcendent higher power has not been (as it might have been, at least in principle) to a city that is purely “secular” in a positivistic sense. The shift, rather, has been to a community that remains respectful of the immanently sacred.

To be sure, a standard account of conscience today would probably not be presented in precisely these terms. Instead, conscience is typically defined and understood in terms of sincere “moral” convictions or commitments.¹¹¹ But this label—“moral”—while not necessarily wrong, is unilluminating¹¹² and probably overbroad for conveying the typical meaning of “conscience.” Thus, utilitarianism is standardly classified as a “moral” position, but the young pacifist who declares, “I’m a utilitarian, and on my calculations, war almost always reduces the net amount of human happiness,” will probably not be viewed as asserting an objection of “conscience” in the necessary sense. Even the young Kantian who explains, “I’ve thought about it, and I can’t come up with a maxim for serving in the army that I can will to be a universal law,” will likely not seem to be quite what we think of as a “conscientious” objector. Conscience, rather, typically connotes something like a reflective judgment in favor of some value or commitment that the person deems to be inviolable, or sacred.

And indeed, this was precisely the nature of the celebrated nonreligious (or not conventionally religious) “conscientious objectors” in the Vietnam War period. Elliott Welsh described his objection to war in these terms: “I believe that human life is valuable in and of itself; in its living; therefore, I will not injure or kill another human being. This belief (and the corresponding ‘duty’ to abstain from violence toward another person) is not ‘superior to those arising from any human relation.’ On the contrary: it is essential to every human relation.”113

Welsh was thus clear that in his view, human life had a sacred or inviolable quality. He was equally clear that this inviolable or sacred quality was immanent in life; it was not derived from any outside or transcendent source. And it was this sort of conscience—namely, one that was respectful of such immanent sacredness—that the Supreme Court found so compelling, and that more contemporary commentators find attractive.

In advocating the importance of conscience while rejecting the deference to a higher or transcendent “religious” authority, the critics of “religious” accommodation demonstrate their commitment to a community that, while declining to acknowledge any transcendent authority, is nonetheless open to and respectful of immanently sacred values. To a community, or a city, that is pagan (in Varro’s philosophical sense).

God outside the Gates

The development we have been considering—namely, the development away from the accommodation of (transcendent) religion and toward a commitment to conscience, now understood in immanent terms—is not an isolated development. That development, rather, is best understood as one aspect of a broader movement away from a conception of the political community influenced by Christianity—or, more generally, by a transcendent religiosity—to a conception of the community closed to such transcendence but open to a more immanent religiosity. As with the movement from freedom of religion to freedom of conscience, this more general development can be divided into three phases—three phases in the city’s closing off of itself to transcendence. (Although, again, the phases are artificial and for purposes of exposition. In reality the changes overlap, and all are still to some extent in progress and subject to contestation.)

In the first phase, commitments and values deriving from transcendent religion, formerly deemed respectable and legitimate in public discourse, come to be excluded from the city’s own political decision making. In America, this change is discernible both in political thought and in constitutional law. In political philosophy, a central conversation in recent decades has debated and refined the idea of “public reason,” an idea associated with but hardly limited to John Rawls.114 Although the idea has been elaborated in a variety of versions, and although Rawls himself continually modified and qualified his position in various ways, the central contention is that in a diverse political community, important political decisions should not be based on “sectarian” considerations or on “comprehensive doctrines” that not all citizens share.¹¹⁵ And “religion”—or at least “religion” in the traditional sense—would seem to be the most conspicuous member of this class of “comprehensive doctrines” that are now deemed inadmissible in important public decision making; indeed, an express purpose of Rawls’s theorizing was to find a way of overcoming the differences that had resulted with the breakup of Christendom and the consequent development of religious pluralism.116

This restriction on religious reasons, however, is not understood to exclude reliance on what we have here described as immanently religious values. Thus, the proponents of public reason do not seem to contemplate excluding arguments asserting that human beings, or human rights, have a sacred or inviolable quality. None of Ronald Dworkin’s invocations of the “sacred” in his approaches to abortion and euthanasia would be out of bounds;¹¹⁷ indeed, Dworkin and Rawls later collaborated, along with several other prominent thinkers, to write a “philosophers’ brief” in the Supreme Court’s assisted suicide cases.¹¹⁸ But the requirements of public reason would exclude, as sectarian, any decisive reliance¹¹⁹ on the more “comprehensive doctrines” of transcendent religious faiths.

Within academic discussions, to be sure, the “public reason” proposal has been controversial. The proposal has its prominent and powerful advocates, but it has also been subjected to what some will regard as devastating objections by critics like David Enoch and Christopher Eberle.¹²⁰ In the less rarefied and reflective context of actual political decision-making under the supervision of constitutional law, however, something like a public reason requirement—or, at least, an exclusion of “sectarian” or transcendently religious justifications of laws—has come to have a “taken for granted” quality.¹²¹ Constitutional scholars take it as axiomatic that public decisions cannot be based on religious or theological claims.¹²² Citizens and even politicians may, to be sure, invoke religion or quote the Bible in general public discussions; freedom of speech protects such expressions. But legislators and, even more so, lawyers understand that when a law is challenged in court, they cannot rely on conventionally “religious” reasons to provide justifications; to do so would be fatal to their cause.

The recent same-sex marriage decisions represent a stark manifestation of this condition. Laws limiting marriage to opposite-sex couples were of course challenged in many states, and eventually in the Supreme Court, as violations of the Fourteenth Amendment’s due process and equal protection clauses. As interpreted by the courts, those clauses mean that a state must have at least a “rational basis” for laws it adopts. In attempting to supply such a basis, lawyers defending traditional marriage laws emphatically did not invoke the Bible, or the law of God, or anything of that sort. Instead, they argued basically that traditional marriage is good for children, for the institution of marriage, and hence for society. And in striking the laws down, the courts often suggested that whatever the lawyers might have argued, religion was in fact the real reason for the laws.123 Since religion could not provide a legitimate basis for law (or so the judges assumed), it followed that the traditional marriage laws were unconstitutional.

In excluding such “religious” considerations, both the lower courts and the Supreme Court have rarely if ever offered any serious analysis of the issue; instead, they have dismissed the “religious” considerations summarily and in an “as everybody knows” tone. Asked to supply a constitutional ground, however, the courts and most lawyers would likely refer to the requirement in establishment clause doctrine that governments act only for “secular” purposes.124 Or they might invoke the legendary “wall of separation between church and state” from Thomas Jefferson’s letter to the Danbury Baptist Association.¹²⁵ Critics of these and similar decisions accordingly react, often, by decrying the “secularism” requirement or the “wall of separation.”¹²⁶

As a historical matter, in fact, both sides are on shaky ground; both the invocations and the critical reactions are misplaced. It is true that the closing off of political decision making to the transcendent has occurred under the cover of an understanding that government must be “secular.” In itself, though, that understanding is perfectly unobjectionable; political thinkers from Augustine to Aquinas to Madison could all have cheerfully agreed that government, in contrast to the church, is supposed to be “secular.” Indeed, the insistence that government must be limited to the “secular” might almost be said to be a Christian invention, and even a Christian dogma;¹²⁷ no such restriction would have been recognized—or, probably, even understood—in ancient Rome. And, although not explicitly used in the Constitution, the phrase “wall of separation between church and state,” if read literally (as it hardly ever is, especially by the modern advocates who most often invoke it),128 could be taken as an apt metaphor for the political dualism that has characterized Christian thinking from Jesus through Augustine through Luther and Calvin (with their doctrine of the “two kingdoms”)¹²⁹ and on to the less overtly Christian Madison and Jefferson.

The decisive change, rather, has come not with the idea that government should be “secular,” but instead with the subtle and perhaps almost unconscious transformation of that term to exclude what in chapter 9 we called the Christian or transcendent secular, leaving only the positivistic and pagan conceptions of the secular. It is under those conceptions that the contemporary “secular” city is conceived.

This conclusion, though—namely, that transcendent religious considerations cannot be permitted to influence the city’s own political decision making—would in itself still leave open the possibility of legal and political deference to individuals’ judgments about the transcendent with respect to their own lives. “Although we as a city do not act on transcendent reasons or commitments,” a community’s authorities might explain, “we recognize that some of our citizens do believe in and act on such reasons. And we try to make room for, and thus to avoid interfering in, that sort of religiosity.”

This position would be compatible with complete civic agnosticism with respect to transcendent religion. Judge and professor Michael McConnell has occasionally proposed a version of such civic agnosticism.¹³⁰ The liberal state, McConnell argues, is obligated to be religiously neutral, and is accordingly barred from asserting either that theistic religion is true or that it is false. Some citizens hold to theistic beliefs; the liberal state cannot affirm that these citizens are right, but neither can it say that they are wrong. So the state in effect acknowledges that they might be right. And if they are right—if, that is, God commands them to do or not to do particular things (like go to war, or assist in celebrating a same-sex marriage)—the state would not want to compel them to disobey God (and in doing so to put itself in opposition to God). Hence, the state—the agnostically neutral state—should accommodate these citizens’ religious commitments if it can.

Insofar as they argue that religious accommodation is not merely not mandatory but impermissible, however, opponents of accommodation would forbid the state to recognize the possibility of transcendence even in that indirect and agnostic sense. That, of course, is the conclusion argued for, sometimes in qualified form,131 by proponents of the nonestablishment and equality objections discussed earlier in the chapter. Their position thus reflects a second phase in the closing off of the city to transcendence. In this second phase (which is still in progress, and contested), the city not only declines to acknowledge or act on transcendent reasons in its own decision-making; it declines to afford respect to such reasons as embraced by individual citizens.

Successfully consummated, the first and second phases would leave the city thoroughly insulated against transcendence. In another sense, though, it might still be said that the city is not hostile to transcendence, exactly. Some of its citizens still believe in transcendence, and the city does not prosecute or punish them for doing so—as it could do, and as some governments have done. On the contrary, citizens are still left free to believe in and act on transcendent religion—to profess, pray, worship, congregate, even proselytize—so long as these activities do not enter into public decision-making and do not conflict with any public interest or policy or law. The city might thus even sincerely proclaim that it respects “religious freedom.” Religion is free to flourish in the private sphere—outside the city walls, so to speak.

There is precedent for such a position. In ancient Rome, Christians often lived and practiced, and were largely left free to live and practice, outside the walls of the city. That is where the Christian catacombs were located, for example, where Christians often buried their dead. And in the confessional states of early modern Europe, dissenting religious communities were sometimes permitted to meet and worship outside the city walls.¹³² This was religious freedom—of a tenuous sort, to be sure. It was far from full inclusion. But the faithful could live out their faith, as long as they were willing to pay the price of staying out of the public sphere. It was a steep price; still, religion has often fared worse.

As noted, the successful completion of phases one and two would leave the contemporary devotees of transcendent religion in a similar position. Considering the alternatives, many might be satisfied with—even thankful for—this sort of free space “outside the walls” in which to practice their faith.133 But then a third phase may set it. In this phase the city swells and the walls are moved outward, so that the space for the free practice of transcendent religion becomes ever more cramped.

Such a process is discernible in America in recent decades, as the public sphere has expanded, leaving less room for the private. Although various factors have contributed to this expansion, probably the most important factor for these purposes has been the enactment and expansion of ambitious antidiscrimination laws, in a variety of forms, on the national, state, and local levels. Such laws differ in their content, obviously, but many or most of them apply to institutions of various sorts, including nearly all businesses of any significant size, and many or most of them prohibit discrimination on grounds of race, religion, sex, often sexual orientation. Antidiscrimination laws have the effect of annexing the marketplace, once mostly thought of as part of the private sphere, into the public domain, at least for many important purposes. Or perhaps more accurately, the marketplace has long been thought to have both public and private dimensions; antidiscrimination laws have the effect of significantly expanding the public component of that domain.¹³⁴ And the result is that people whose religious views conflict with public policies are still free to practice their religion in private. But the “private” no longer includes the domain of business, or economic activity.

These are, of course, the laws that directly provoked the question that we noticed at the outset of this chapter. A wedding photographer, say, is religiously opposed to same-sex marriage. Probably she has no objection to providing services to gay individuals—it would never occur to her to decline to do a portrait of someone because he or she is gay—but the photographer does object to using her creative and artistic talents to assist in celebrating a union that she believes to be contrary to the Bible, or to God’s will. Her refusal to do so, however, may bring her into conflict with a state antidiscrimination law, and the prospect of potentially devastating sanctions.

Such conflicts have multiplied, and have gained increasing public attention, in recent years.135 At least a large part of the elite public seems unsympathetic to the wedding photographer’s plight—hence the critical outcry against the Indiana law that primarily sought to protect people in the photographer’s position—and the standard response to her plea is by now comfortingly (or perhaps wearisomely) familiar. The photographer is perfectly free to practice her religion, the argument goes; no one is trying to stop her from doing that. She just cannot practice her religion while working as a wedding photographer. And if she finds that constraint unacceptable, then she needs to relinquish her profession and practice her religion somewhere else—in private.¹³⁶

If the photographer is a traditional Christian, of course, it is probably not only the business of wedding photographer that will no longer be open to her. Public annexation of the marketplace under nondiscrimination and other public norms not qualified by religious accommodation may mean that she will also be inhibited from being a marriage counselor,¹³⁷ a doctor in general practice,¹³⁸ perhaps a pharmacist,¹³⁹ a baker,¹⁴⁰ or a florist.141 Teaching may be problematic; at least she may be required to keep some of her Christian convictions to herself.¹⁴² The same may be true if she wants to be a judge.¹⁴³ Exactly what conflicts she may face will depend, of course, on the specifics of her faith, on her particular talents and career prospects, on the jobs that happen to be available, and on the particulars of the antidiscrimination and other laws where she happens to reside. In the abstract, it can still be said that she is free to practice her faith in the private sphere—outside the city walls. But the city walls have expanded significantly, and the private sphere has shrunk accordingly.

Once again, this development brings to mind features of the ancient struggle between Christians and pagan authorities. As we saw in chapter 6, “as a prerequisite to engaging in any commercial transaction [Christians] had to give specific divine honours to the Caesars. Without doing so they would not have been able to secure provisions for their daily needs, as all goods could only be bought or sold through the authorized markets in a first-century city.”¹⁴⁴ Subjects had to be certified for economic activity: “then, and only then, could they sell or purchase essential commodities.”¹⁴⁵ A similar logic is being applied, it seems, to pharmacists, doctors, marriage counselors, wedding photographers, florists, bakers, and others who are told: accept requirements that put you in violation of your religion or else get out of your business or profession.

The Question Continued

At the outset of the chapter, it was promised that we would address a question posed in chapter 1: Why would proponents of same-sex marriage, or of laws forbidding discrimination on the basis of sex or sexual orientation, bring lawsuits against, say, counselors who oppose same-sex marriage when those professionals’ services are readily available elsewhere and when no sensible same-sex couple would actually want to be counseled by someone who is religiously opposed to their union?

Our discussion has answered that question only halfway. We have considered reasons why proponents of the antidiscrimination policy would oppose a constitutional or legal doctrine requiring accommodation of the religious counselor, wedding photographer, pharmacist, or doctor. Such a doctrine, reflective of a Christian or transcendent religiosity, is incongruous in the city now reconceived in secular and immanently religious terms.

Still, even if the objecting professionals or providers are not legally entitled to an exemption, it does not follow that the laws must be aggressively applied against them. Why do at least some proponents of the antidiscrimination policies strongly favor this sort of aggressive application? We will revisit that question in the next chapter.

1. For a supporting survey, see Steven D. Smith, The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014).

2. Douglas Laycock, “Sex, Atheism, and the Free Exercise of Religion,” Detroit-Mercy Law Review 88 (2011): 407.

3. See, e.g., Chris Johnson, “DOJ Touts Anti-LGBT Views, Task Force at ‘Religious Freedom’ Summit,” Washington Blade, July 30, 2018, http://www.washingtonblade.com/2018/07/30/sessions-announces-new-task-force-at-anti-lgbt-religious-freedom-summit/.

4. Matthew Arnold, “Dover Beach,” Poetry Foundation, accessed July 13, 2017, https://www.poetryfoundation.org/poems/43588/dover-beach.

5. Cf. Stephen Macedo, “Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism,” Political Theory 26 (1998): 56, 61, 63 (arguing that a liberal state needs to cultivate “wishy-washy religion”).

6. Holy Trinity Church v. United States, 143 U.S. 457, 470 (1892).

7. The point is developed in Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), 6–8.

8. See above, 268–82.

9. To invoke a commonly used example, see, e.g., Andrew Koppelman, “Secular Purpose,” Virginia Law Review 88 (2002): 106n68: if a group of devout Aztecs believes it is religiously obligated to cut out the beating hearts of sacrificial victims, application of a state’s laws prohibiting homicide would surely burden the exercise of that belief; but, at least in America today, nearly everyone would consider it unreasonable for the government to exempt the Aztecs from the murder laws. The government’s interest in preventing murder will outweigh the Aztecs’ religious commitment.

10. Governments need not purport to respect religious freedom, of course. Governments might be—and have often been—actively hostile to religion, or at least some religions. Communist governments have often adopted this attitude, for example. So did the Mexican government during the period portrayed in Graham Greene’s novel The Power and the Glory (New York: Penguin, 1991).

11. On Locke, see Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 67. On Williams, see Steven D. Smith, “Separation and the Fanatic,” Virginia Law Review 85 (1999): 230–31.

12. An accommodation strategy can be and has been implemented on a variety of levels. It can be—and was, for decades—enshrined in constitutional doctrine. It can also be—and often has been—embodied in statutes, both state and federal. Accommodation can be afforded by institutional policies—of a school district, or a corporation. Often the strategy is implemented on an informal and ad hoc basis: a student asks if she can be excused from class on Friday because of a religious holiday, and the teacher says yes (or no).

13. I have elsewhere offered a slightly different interpretation of what the Court’s “free exercise” jurisprudence had called for. See Steven D. Smith, Getting Over Equality: A Critical Diagnosis of Religious Freedom in America (New York: New York University Press, 2001), 83–96.

14. Sherbert v. Verner, 374 U.S. 398 (1963).

15. Employment Division v. Smith, 494 U.S. 872 (1990).

16. See, e.g., Ira C. Lupu, “Hobby Lobby and the Dubious Enterprise of Religious Exemptions,” Harvard Journal of Law and Gender 38 (2015): 48–54.

17. See Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1421–29.

18. McConnell, “Origins and Historical Understanding,” 1467–72.

19. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), published in William Sampson, The Catholic Question in America (University of Michigan Library, 1813). The decision was privately reported but has been frequently reprinted. See, e.g., Michael W. McConnell et al., Religion and the Constitution, 3rd ed. (2011), 139.

20. Paul Horwitz, “The Hobby Lobby Moment,” Harvard Law Review 128 (2014): 167 (partially quoting McConnell, “Origins and Historical Understanding,” 1466).

21. See, e.g., Simon’s Executors v. Gratz, 2 Pen. & W. 412 (Penn. Sup. Ct. 1831) (rejecting claim for accommodation of Jewish Sabbath).

22. Reynolds v. United States, 98 U.S. 145 (1878). In an interpretation seeking to minimize the value and historic importance of the accommodation, Ira Lupu relies primarily—or rather, solely and entirely—upon Reynolds to characterize the pre-1963 constitutional jurisprudence of free exercise. Lupu, “Hobby Lobby,” 48–49.

23. Davis v. Beason, 133 U.S. 333 (1890); Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890).

24. See, e.g., Lupu, “Hobby Lobby,” 48; Daniel O. Conkle, Religion, Law, and the Constitution, Concepts and Insights Series (Saint Paul, MN: Foundation Press, 2016), 15–17.

25. Reynolds, 98 U.S. at 164.

26. Reynolds, 98 U.S. at 164–67.

27. Reynolds, 98 U.S. at 165–66.

28. Reynolds, 98 U.S. at 166.

29. Clark B. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence and the Challenge of Polygamy: The Relevance of Nineteenth-Century Cases and Commentaries for Contemporary Debates about Free Exercise Exemptions,” Oregon Law Review 85 (2006): 369, 403–23.

30. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence,” 398–403.

31. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence,” 432–41.

32. Reynolds, 98 U.S. at 166.

33. Reynolds, 98 U.S. at 167.

34. Although it is usually reported, as noted, that the Supreme Court did not build the accommodation requirement into constitutional doctrine until 1963 (see, e.g., Lupu, “Hobby Lobby,” 49), that report is not quite accurate. The Court had explicitly rejected any categorical belief-conduct distinction and had implied a qualified obligation to accommodate religious conduct much earlier in the well-known case of Cantwell v. Connecticut, 310 U.S. 296, 303–4 (1940). Lawyers and scholars are aware of the Cantwell statement (see, e.g., Conkle, Religion, Law, and the Constitution, 17) but usually fail to regard it as an actual statement of law, perhaps because it was not offered in the formulaic terms that legal “doctrines” later commonly came to take. For a critical and perceptive discussion of this “formulaic” style, see Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1989), 121–55.

35. Employment Division, 494 U.S. at 890.

36. See Conkle, Religion, Law, and the Constitution, 121–23.

37. Conkle, Religion, Law, and the Constitution, 123–24.

38. William J. Clinton, “Remarks on Signing the Religious Freedom Restoration Act of 1993,” American Presidency Project, November 16, 1993, http://www.presidency.ucsb.edu/ws/?pid=46124.

39. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2763 (2014); Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).

40. For my own, much lengthier but still very summary discussion, see Steven D. Smith, Rise and Decline, 17–43.

41. Matt. 22:20–21.

42. See Hugo Rahner, Church and State in Early Christianity, trans. Leo Donald Davis, SJ (San Francisco: Ignatius, [1961] 1992), 51–60.

43. Rahner, Church and State, 133–224.

44. Rahner, Church and State, 235–37.

45. Rahner, Church and State, 174.

46. See generally Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 85–113.

47. See Brian Tierney, The Crisis of Church and State, 1050–1300 (Toronto: University of Toronto Press, 1964).

48. For a cogent discussion of the relevance of these medieval precedents to contemporary American law, see Richard W. Garnett, “ ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense,” Journal of Contemporary Legal Studies 21 (2013): 33.

49. See Steven D. Smith, Rise and Decline, 36–38.

50. See, e.g., Elisha Williams, The Essential Rights and Liberties of Protestants: A Seasonable Plea for the Liberty of Conscience, and the Right of Private Judgment, In Matters of Religion, Without any Controul from human Authority (Boston: S. Kneeland and T. Green, 1744), 12 (italics omitted) (arguing that “if CHRIST be the Lord of Conscience, the sole King in his own Kingdom; then it will follow, that all such as in any Manner or Degree assume the Power of directing and governing the Consciences of Men, are justly chargeable with invading his rightful Dominion; He alone having the Right they claim”).

51. See generally Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (New York: Oxford University Press, 2012). With respect to one influential Protestant figure, Isaac Backus, Miller explains: “Backus ultimately rested his defense of full religious liberty on the three points common to Locke, Elisha Williams, and [William] Penn: (1) all spiritual knowledge is personal; (2) there is no ultimate earthly spiritual authority; and (3) therefore, the civil power has no jurisdiction in spiritual matters” (106).

52. Cf. Vincent Blasi, “School Vouchers and Religious Liberty: Seven Questions from Madison’s Memorial and Remonstrance,” Cornell Law Review 87 (2002): 783, 789 (observing that the term “cognizance” as used by Madison could not have meant “knowledge” or “awareness” but must rather be understood to mean “responsibility” or “jurisdiction”).

53. James Madison, “Memorial and Remonstrance against Religious Assessments [Virginia] 1785,” in Church and State in the Modern Age: A Documentary History, ed. J. F. Maclear (New York: Oxford University Press, 1995), 59.

54. Virginia Act for Religious Freedom, in Maclear, Church and State in the Modern Age, 63, 64.

55. See Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Vintage Books, 1996), 309–10.

56. See Robert E. Rodes Jr., Ecclesiastical Administration in Medieval England (Notre Dame: University of Notre Dame Press, 1977), 56–59.

57. See below, 338–39.

58. For a forceful argument to this conclusion, on both theoretical and historical grounds similar to those presented here, see Michael Stokes Paulsen, “The Priority of God: A Theory of Religious Liberty,” Pepperdine Law Review 39 (2013): 1159.

59. For a forceful statement of this objection, see Jean L. Cohen, “Freedom of Religion, Inc.: Whose Sovereignty?” Netherlands Journal of Legal Philosophy 44 (2015): 169.

60. For similar reasons, it should be unsurprising that in advocating a version of immanent religion, as we saw in chapter 9, Ronald Dworkin also argues against religious accommodation or special legal treatment of “religion.” See Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013), 105–49.

61. See generally Cohen, “Freedom of Religion, Inc.”; see also Cécile Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017).

62. See, e.g., Marvin Lim and Louise Melling, “Inconvenience or Indignity? Religious Exemptions to Public Accommodations Laws,” Journal of Law and Policy 22 (2014): 705; Louise Melling, “Religious Refusals to Public Accommodations: Four Reasons to Say No,” Harvard Journal of Law and Gender 38 (2015): 177.

63. For brief summaries of the episode, see Steven D. Smith, “The Tortuous Course of Religious Freedom,” Notre Dame Law Review 91 (2016): 1553, 1561–65; Patrick J. Deneen, “The Power Elite,” First Things, June 2015, http://www.firstthings.com/article/2015/06/the-power-elite.

64. See Douglas Laycock, “The Campaign against Religious Liberty,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman et al. (New York: Oxford University Press, 2016), 231, 248 (“The public debate over the Indiana RFRA presented mostly falsehood from both sides”). For further discussion of the mendacious quality of the debate, see Steven D. Smith, “Tortuous Course,” 1563–65.

65. See Laycock, “Campaign against Religious Liberty,” 249–50. See also an interview of Douglas Laycock: “Why Law Professor Douglas Laycock Supports Same-Sex Marriage and Indiana’s Religious Freedom Law,” Religion and Politics, April 1, 2015, http://religionandpolitics.org/2015/04/01/why-law-professor-douglas-laycock-supports-same-sex-marriage-and-indianas-religious-freedom-law.

66. Such mendacity has become a recurring spectacle. Much the same display occurred in another episode leading (just last week, as of the time I write) to the veto of a similar law in Georgia.

67. See David McCabe, “Indiana’s Memories Pizza Reopens after Gay Rights Furor,” Hill, April 10, 2015, http://thehill.com/blogs/blog-briefing-room/news/238415-indiana-pizza-parlor-embroiled-in-religious-freedom-law-reopens.

68. Hobby Lobby, 573 U.S. ___ , 134 S. Ct. 2751; Zubik v. Burwell, 578 U.S. ___ , 136 S. Ct. 1557 (2016).

69. Holt v. Hobbs, 574 U.S. ___ , 135 S. Ct. 853 (2015).

70. For an extended discussion and criticism of the arguments and a systematic defense of religious accommodation, see Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (New York: Cambridge University Press, 2015).

71. Ronald Dworkin’s more recent objection sounds in both the establishment and equality rationales. See Dworkin, Religion without God, 114–16.

72. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

73. See Steven D. Smith, Rise and Decline, 48–66. In this vein, at the conclusion of a recent study, Donald Drakeman explains that “It is important to appreciate that [the establishment clause] was not the statement of a principle of secularism, separation, disestablishment, or anything else. It was the answer to a very specific question: Would the new national government countenance a move by the larger Protestant denominations to join together and form a national church? The answer was no. . . . At the time it was adopted, the establishment clause addressed one simple noncontroversial issue, and the list of those who supported it demonstrates that it cannot reasonably be seen as encompassing a philosophy about church and state.” Donald L. Drakeman, Church, State, and Original Intent (New York: Cambridge University Press, 2010), 330.

74. See Estate of Thornton v. Caldor, 472 U.S. 703 (1985).

75. See, e.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). Cf. Richard W. Garnett, “Accommodation, Establishment, and Freedom of Religion,” Vanderbilt Law Review En Banc 67 (2014): 39, 41 (arguing that “it often makes sense and is the right thing to do—it is not only ‘permissible’ but also ‘praiseworthy’—to accommodate religious believers through exemptions from otherwise generally applicable laws, including laws that the majority regards as well-meaning and wise”). In recent years, several scholars have attempted to distinguish this earlier acceptance of accommodation by arguing that although accommodation per se is not unconstitutional, accommodation becomes unconstitutional if it imposes harms on third parties. See, e.g., Frederick M. Gedicks and Rebecca Van Tassell, “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,” Harvard Civil Rights–Civil Liberties Law Review 49 (2014): 343. This argument has at best a tenuous grounding in the case law, and it is embarrassed by the fact that in the best-known and settled instance of religious accommodation—namely, exemption of religious pacifists from military service—the harm to third parties seems both real and severe: for every Quaker exempted from serving in Vietnam, someone else will presumably have to serve (and perhaps die) in his place. Proponents of the third-party-harm position sometimes attempt to distinguish the military case by arguing that accommodation is unconstitutional only when a burden falls on identifiable third parties, but the relevance of this qualification is far from obvious. If we know that third parties are being burdened or harmed, what difference should it make whether we can identify precisely who those third parties are? For a cogent critique of the third-party-harm argument, see Marc O. DeGirolami, “Free Exercise by Moonlight,” San Diego Law Review 53 (2016): 105, 131–44.

76. Dworkin, Religion without God, 125–26.

77. The issue has been extensively discussed in legal literature. The classic treatment is Peter Westen, “The Empty Idea of Equality,” Harvard Law Review 95 (1982): 537. For application of the point to current controversies, see Richard W. Garnett, “Religious Accommodations and—and among—Civil Rights: Separation, Toleration, and Accommodation,” in Institutionalizing Rights and Religion: Competing Supremacies, ed. Leora Batnitzky and Hanoch Dagan (Cambridge: Cambridge University Press, 2017), 42–56. See also Steven D. Smith, “Equality, Religion, and Nihilism,” in Research Handbook on Law and Religion, ed. Rex Ahdar (Northampton, MA: Edward Elgar Publishing, 2018).

78. People may, of course, be “similarly situated” for some purposes but not for others. Thus, a law forbidding blind people to vote would violate equality, because for purposes of voting blind people and sighted people are similarly situated. But a law forbidding blind people to drive would not violate equality, because with respect to driving there is an adequate justification for distinguishing between people who are blind and people who are not.

79. See, e.g., Michael W. McConnell, “Accommodation of Religion,” Supreme Court Review 1985 (1986): 1, 15–24.

80. See Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism (Wilmington, DE: Intercollegiate Studies Institute, 2013), 147–52. George explains how in a version of the Gettysburg Address printed for distribution by the progressive American Constitution Society, the society used an earlier draft of the talk that did not contain the words “under God,” even though historians agree that the language was included in Lincoln’s actual address. “These groups know exactly what they are doing,” George asserts, “and, to achieve the result they want, they are willing to violate scholarly consensus, common sense, and the memorization of generations of schoolchildren” (151–52).

81. Zorach v. Clauson, 343 U.S. 306, 312 (1952).

82. Reynolds, 98 U.S. at 167.

83. See T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (1987): 943, 948–52. The Reynolds Court’s all-or-nothing approach to the legal validity of a statute is apparent at Reynolds, 98 U.S. at 166–67.

84. Employment Division, 494 U.S. at 885.

85. Employment Division, 494 U.S. at 879, 885, 890.

86. See, e.g., Fair Labor Standards Act, 29 U.S.C. § 213 (providing exemptions for minimum wage requirements of section 206); Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) (defining an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees”).

87. See, e.g., Cal. Penal Code § 198.5 (allowing for use of deadly force in the home if there is a “reasonable fear of imminent peril or great bodily injury”); Ariz. Rev. Stat. Ann. § 13–411 (justifying the use of deadly force in preventing crime); see also “Self Defense and ‘Stand Your Ground,’ ” National Conference of State Legislatures, March 9, 2017, http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx (citing as many as twenty-four states with codified self-defense exemptions).

88. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).

89. Every law has a finite scope; it applies to some class of people but not to people outside the class. An exception is simply a way of defining the scope of the law. It no more makes anyone a “law unto himself” than the fact that a law applies only to a defined class makes everyone outside that class a “law unto himself.”

90. Opponents of religious accommodation often argue that there is no good justification for giving “special treatment” to religion. See, e.g., Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2013); Micah Schwartzman, “What If Religion Is Not Special?” University of Chicago Law Review 79 (2012): 1351; Gemma Cornelissen, “Belief-Based Exemptions: Are Religious Beliefs Special?” Ratio Juris 25 (2012): 85; Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007); Anthony Ellis, “What Is Special about Religion?” Law and Philosophy 25 (2006): 219; James W. Nickel, “Who Needs Freedom of Religion?” Colorado Law Review 76 (2005): 941. But in fact, it is their position that singles out religion for special treatment by making it an impermissible basis of legal accommodation.

91. See James Madison, “Memorial and Remonstrance against Religious Assessments [Virginia] 1785,” in Church and State in the Modern Age: A Documentary History, ed. J. F. Maclear (New York: Oxford University Press, 1995), and above, 312–13.

92. For a spirited presentation of this view, see Cohen, “Freedom of Religion, Inc.” In a similar vein, Laborde, Liberalism’s Religion; B. Jessie Hill, “Kingdom without End? The Inevitable Expansion of Religious Sovereignty Claims,” Lewis and Clark Law Review 20 (2017); Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99 (2013): 917, 939–45.

93. To be sure, there was something curious about the contexts in which the Supreme Court expressed this concern. As a general matter, the nineteenth-century Supreme Court seemingly had no strong reservation about acknowledging a higher authority. This was after all essentially the same Court that struck down an Illinois law authorizing women to practice law on the ground that “the law of the Creator” had ordained that women should fulfill the role of wives and mothers. Bradwell v. Illinois, 83 U.S. 130, 141 (1873). And the same Court would later declare that “we are a Christian nation.” Holy Trinity Church, 143 U.S. at 470. The “law unto itself” remark in Reynolds is perhaps best explained as an overwrought expression of the abhorrence felt by many nineteenth-century Americans toward Mormonism and Mormon polygamy. Justice Scalia’s expression of the “law unto himself” worry in Smith likewise seems curious, given Scalia’s open and unapologetic religiosity; but then a good deal in Scalia’s Smith opinion seems odd, and difficult to defend. See Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990): 1109.

94. See Micah Schwartzman, “Religion as a Legal Proxy,” San Diego Law Review 51 (2014): 1085; Leiter, Why Tolerate Religion?, 64 (“If matters of religious conscience deserves [sic] toleration . . . then they do so because they involve matters of conscience, not matters of religion”). Although Leiter argues that accommodation of conscience can be justified and that accommodation of religion cannot be justified, however, he is ultimately skeptical about the accommodation of conscience as well. Leiter, 17, 63–67, 94–100. For a description and criticism of Leiter’s position, see Mark L. Rienzi, “The Case for Religious Exemptions—Whether Religion Is Special or Not,” Harvard Law Review 127 (2014): 1395.

95. Marie A. Failinger, “Wondering after Babel: Power, Freedom, and Ideology in U.S. Supreme Court Interpretations of the Religion Clause,” in Law and Religion, ed. Rex J. Ahdar (Aldershot, UK: Ashgate, 2000), 94.

96. See Nathan Chapman, “Disentangling Conscience and Religion,” University of Illinois Law Review 2013 (2013): 1457, 1464–71; Michael J. White, “The First Amendment’s Religion Clauses: ‘Freedom of Conscience’ versus Institutional Accommodation,” San Diego Law Review 47 (2010): 1075, 1075–76, 1081.

97. McConnell, “Origins and Historical Understanding,” 1488–1500.

98. See Chapman, “Disentangling Conscience and Religion.”

99. United States v. Seeger, 380 U.S. 163 (1965).

100. Arising from any human relation, but Welsh v. United States, 398 U.S. 333 (1970).

101. In the first case, Seeger, the federal exemption applied to persons who were opposed to war on the basis of “religious training and belief,” and it defined such training and belief as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” Seeger, 380 U.S. at 165.

102. Seeger, 380 U.S. at 166.

103. See Eisgruber and Sager, Religious Freedom, 114.

104. See above, 328.

105. See above, 325n90.

106. See, e.g., Douglas Laycock, Religious Liberty, vol. 1, Overviews and History (Grand Rapids: Eerdmans, 2010): 58–61; Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 3–9.

107. See Laycock, Religious Liberty, 69–80; see also Kent Greenawalt, “Religious Toleration and Claims of Conscience,” Journal of Contemporary Legal Issues 21 (2013): 449, 461 (concluding after careful discussion that “for individuals, but not organizations, . . . most exemptions granted for moral conscience should be extended to nonreligious claimants”).

108. See, e.g., Laycock, Religious Liberty, 58; Kent Greenawalt, Religion and the Constitution, vol. 2, Establishment and Fairness (Princeton: Princeton University Press, 2008), 57, 195, 492–93, 523–24.

109. See, e.g., Greenawalt, Religion and the Constitution, 1:3 (arguing that “people should be free to adopt religious beliefs and engage in religious practices because that is one vital aspect of personal autonomy”); Alan Brownstein, “Protecting the Religious Liberty of Religious Institutions,” Journal of Contemporary Legal Issues 21 (2013): 201, 206 (arguing that “the most persuasive justifications for protecting the religious liberty of individuals are grounded in a commitment to personal autonomy and human dignity”).

110. See Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 136–41 (distinguishing among four distinct conceptions of conscience).

111. See, e.g., Greenawalt, “Religious Toleration,” 452–53 (observing that “in most contexts, asserting that something is a matter of ‘conscience’ implies a strong moral conviction”).

112. With respect to greatly divergent conceptions of what “morality” even refers to, philosopher Michael Smith has observed that “if one thing becomes clear by reading what philosophers writing in meta-ethics today have to say, it is surely that enormous gulfs exist between them, gulfs so wide that we must wonder whether they are talking about a common subject matter.” Michael Smith, The Moral Problem (Malden, MA: Blackwell, 1994), 3.

113. Welsh, 398 U.S. at 343 (emphasis added).

114. John Rawls, Political Liberalism (New York: Columbia University Press, 1996). For alternative elaborations, see, e.g., Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014); Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (New York: Cambridge University Press, 2011); Stephen Macedo, “Liberalism and Public Justification,” in Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (New York: Clarendon, 1990), 39–75.

115. See Rawls, Political Liberalism, 212–47. The point is further developed in the following chapter.

116. Rawls, Political Liberalism, xxiv–xxviii.

117. Dworkin’s invocation of the “sacred” was discussed in chapter 9.

118. Reprinted as Ronald Dworkin et al., “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, March 27, 1997, http://www.nybooks.com/articles/1237.

119. In what he called “the proviso,” Rawls eventually qualified his restriction to permit the expression of “comprehensive doctrines” so long as “in due course public reasons . . . are presented sufficient to support whatever the comprehensive doctrines are introduced to support.” Rawls, Political Liberalism, 152. That sort of religion could be invoked in debate on important public issues, in other words, so long as it did not ultimately make a difference to the outcomes.

120. See, e.g., David Enoch, “The Disorder of Public Reason,” Ethics 124 (October 2013): 141; Christopher Eberle, Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002).

121. For an example of this sort of less examined reliance on a supposed secularism constraint by a respected legal scholar, see Edward Rubin, “Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause,” Vanderbilt Law Review 63 (2010): 763.

122. See, e.g., Douglas Laycock, “Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers,” Northwestern University Law Review 81 (1986): 1, 7 (asserting that “the establishment clause absolutely disables the government from taking a position for or against religion. . . . The government must have no opinion because it is not the government’s role to have an opinion”). Michael Perry elaborates on the theme: “No matter how much some persons might prefer one or more religions, government may not take any action based on the view that the preferred religion or religions are, as religion, better along one or another dimension of value than one or more other religions or than no religion at all. So, for example, government may not take any action based on the view that Christianity, or Roman Catholicism, or the Fifth Street Baptist Church, is, as a religion or church, closer to the truth than one or more other religions or churches or than no religion at all—or, if not necessarily closer to the truth, at least a more authentic reflection of the religious history and culture of the American people. . . . Similarly, no matter how much some persons might prefer one or more religious practices, government may not take any action based on the view that the preferred practice or practices are, as religions practice . . . , better—truer, or more efficacious spiritually, for example, or more authentically American—than one or more other religious or nonreligious practices or than no religious practice at all.” Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives (New York: Oxford University Press, 1997), 15. For a critical examination of this widely held assumption, see Richard J. Garnett, “A Hands-Off Approach to Religious Doctrine: What Are We Talking About?” Notre Dame Law Review 84 (2009): 837.

123. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 904 (Iowa 2009) (“The County’s silence reflects, we believe, its understanding [that religious sentiment] cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage”); United States v. Windsor, 133 S. Ct. 2675, 2693–94 (2013) (describing DOMA as expressing a moral conviction that comports with “traditional [especially Judeo-Christian] morality”).

124. See Lemon, 403 U.S. at 612–13.

125. For an incisive discussion of the letter, see Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: New York University Press, 2002), 66.

126. See, e.g., David Barton, Original Intent: The Courts, the Constitution, and Religion (Aledo, TX: WallBuilder Press, 1997); John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Brentwood, TN: Wolgemuth and Hyatt, 1987), 242–45, 406–11. More stridently, then-representative Katherine Harris declared that church-state separation is a “lie we have been told” to exclude religious believers from public life. Jim Stratton, “Rep. Harris Condemns Separation of Church, State,” Orlando Sentinel, August 26, 2006, A9.

127. Charles Taylor, “Modes of Secularism,” in Secularism and Its Critics, ed. Rajeev Bhargava (New York: Oxford University Press, 1998), 31. See also Bernard Lewis, What Went Wrong? Western Impact and Middle Eastern Response (New York: Oxford University Press, 2002), 96 (“Secularism in the modern political meaning . . . is, in a profound sense, Christian. Its origins may be traced in the teachings of Christ, confirmed by the experience of the first Christians; its later development was shaped and, in a sense, imposed by the subsequent history of Christendom”). For further discussion, see Steven D. Smith, The Disenchantment of Secular Discourse (Cambridge, MA: Harvard University Press, 2010), 112–15.

128. “Separationist” commentators or scholars manage to slip from “church” to “religion” almost effortlessly without even noticing the crucial substantive change. See, e.g., T. Jeremy Gunn, “The Separation of Church and State versus Religion in the Public Square: The Contested History of the Establishment Clause,” in No Establishment of Religion, ed. T. Jeremy Gunn and John Witte Jr. (New York: Oxford University Press, 2012), 15, 18 (advocating an interpretation that “favors the ‘separation of church and state’ (or more properly religion and the state)”) (emphasis in original).

129. See John Witte Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), 87–117.

130. See, e.g., McConnell, “Accommodation of Religion,” 15–24.

131. See above, 320n75.

132. See Benjamin J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (Cambridge, MA: Belknap Press of Harvard University Press, 2007), 144–56.

133. See, e.g., Rod Dreher, The Benedict Option: A Strategy for Christians in a Post-Christian Nation (New York: Penguin, 2017).

134. See Richard A. Epstein, “Public Accommodations under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right,” Stanford Law Review 66 (2014): 1241, 1261–77. For a contrary interpretation, see Andrew Koppelman, with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), 5–17.

135. See Warren Richey, “How the Push for Gay Rights Is Reshaping Religious Liberty in America,” Christian Science Monitor, July 11, 2016, http://www.csmonitor.com/USA/Justice/2016/0711/How-the-push-for-gay-rights-is-reshaping-religious-liberty-in-America.

136. See, e.g., Warren Richey, “A Push to Help Gay Couples Find Wedding Joy—without Rejection,” Christian Science Monitor, July 17, 2016, http://www.csmonitor.com/USA/Justice/2016/0717/A-push-to-help-gay-couples-find-wedding-joy-without-rejection (“But many advocates for the lesbian, gay, bisexual, and transgender [LGBT] community take a firmer line. They insist that if conservative religious business owners can’t serve every customer equally they should find new work”).

137. See, e.g., Ward v. Polite, 667 F.3d 727 (6th Cir. 2012).

138. North Coast Women’s Care Medical Group, Inc. v. San Diego City Superior Court, 44 Cal. 4th 1145, 1156, 189 P.3d 959, 967 (2008) (“The First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs”).

139. Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) cert. denied, 136 S. Ct. 2433 (2016) (state regulations requiring pharmacies to dispense lawfully prescribed drugs, including emergency contraceptives, did not violate the free exercise clause of substantive due process).

140. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 137 S. Ct. 2290 (pending before the Supreme Court to be heard in its 2017 term) (“Masterpiece violated Colorado’s public accommodations law by refusing to create a wedding cake for Craig’s and Mullins’ same-sex wedding celebration”).

141. State v. Arlene’s Flowers, Inc., 187 Wash. 2d 804, 389 P.3d 543 (2017) (finding that refusal to provide wedding floral services to a same-sex couple constitutes sexual orientation discrimination and thus violates Washington State’s bar on discrimination in public accommodations). See also Warren Richey, “A Florist Caught between Faith and Financial Ruin,” Christian Science Monitor, July 12, 2016, http://www.csmonitor.com/USA/Justice/2016/0712/A-florist-caught-between-faith-and-financial-ruin.

142. Roberts v. Madigan, 921 F.2d 1047, 1050 (10th Cir. 1990) (upholding the authority of a public school principal to order a teacher to remove the Bible from his desk and other religious posters hanging in the classroom). See also Freshwater v. Mt. Vernon City School District Board of Education, 2013-Ohio-5000, ¶ 97, 137 Ohio St. 3d 469, 1 N.E.3d 335 (finding that an eighth-grade science teacher “is fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith,” but he cannot inject his religious beliefs into the classroom and “ignore direct, lawful edicts of his superiors while in the workplace”).

143. In re Neely, 2017 WY 25, 390 P.3d 728, 753 (Wyo. 2017) (the Wyoming Supreme Court censured a judge for refusing to preside over same-sex marriages, holding “Judge Neely shall either perform no marriage ceremonies or she shall perform marriage ceremonies regardless of the couple’s sexual orientation”). See also Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003) (placement of a Ten Commandments monument in the Alabama State Judicial Building violated the establishment clause, resulting in Chief Justice Roy S. Moore’s removal from office for judicial misconduct).

144. Bruce W. Winter, Divine Honours for the Caesars: The First Christians’ Responses (Grand Rapids: Eerdmans, 2015), 286.

145. Winter, Divine Honours, 286.