Religious Liberty in a Hostile Age

When I started studying religious liberty and church-state relations in the late 1980s, there was little doubt that religious freedom was an important right that must be robustly protected. After the Supreme Court constrained the use of strict scrutiny for religious liberty claims in Employment Division v. Smith (1990), Democrats and Republicans came together to enact the Religious Freedom Restoration Act of 1993. The act passed without a dissenting vote in the House, 97-3 in the Senate, and was signed into law by President Bill Clinton.

Around 2009, this consensus began to collapse. I remember clearly the day when, after giving a lecture at another university, a professor asked me “why should religious convictions be specially protected?” Shortly thereafter, academics started to publish books and articles with titles such as Why Tolerate Religion? and “What if Religion Is Not Special?” Some major media outlets even began to put scare quotes around phrases like “religious freedom.”

In the political arena, the Obama Administration showed little concern for religious freedom when it required businesses to provide contraceptives and abortifacients to employees, even when owners had religious convictions against doing so. It also offered a rare challenge to the doctrine of ministerial exception, a legal protection ensuring, in the words of Chief Justice John Roberts, that churches are free to decide “who will preach their beliefs, teach their faith, and carry out their mission.”

The Cambridge Companion to the First Amendment and Religious Liberty, edited by Michael D. Breidenbach and Owen Anderson, does much to set the record straight. Collectively, its 15 substantive chapters written by leading scholars make a strong case that religious liberty is an important right that must be safeguarded.

In the first three chapters, Anderson, Janice Tzuling Chik, and John Finnis respond directly or indirectly to scholars such as Ronald Dworkin, Brian Leiter, and Micah Schwartzman who contend that religious convictions should be treated no differently than non-religious ones. These philosophers make different but interrelated arguments demonstrating that, in Chik’s words:

Religious liberty is a unique human right: It is not reducible to or identifiable with other rights, which may share similar aspects but in fact refer to fundamentally distinct human powers, such as the right to free speech or the right to espouse certain metaphysical or ethical views. Religion therefore is special, and it deserves respect and protection as such.

In the second section, Glenn Moots, Chris Beneke, Breidenbach, Jonathan Den Hartog, and Zoë Robinson provide an excellent overview of the history of religious liberty and church-state relations in America. By placing early colonial practices in their historical context, Moots shows that it is unfair to condemn colonial leaders for not embracing modern notions of religious liberty and church-state relations. Yet his and Breidenbach’s essays suggest America’s early civic officials did a better job of protecting religious liberty than is often realized.

Contrary to the claims of some contemporary scholars, Chris Beneke’s and Philip Muñoz’s essays leave little doubt that America’s founders thought that religion is special and that religious freedom must be protected. Beneke also debunks the canard that the founders desired to strictly separate church and state. 

Since the mid-20th century, advocates have had a tendency to defend religious liberty in terms of indifference and subjectivism.

Den Hartog’s essay on church and state in the 19th century and Zoë Robinson’s on the Supreme Court’s interpretation of the religion clauses demonstrate that the freedom of religious minorities was often not respected, but few readers will come away from these chapters with the conclusion that this was a good thing.

Robinson contends that since 1980, the Supreme Court’s religious liberty jurisprudence “roughly mirrors contemporary public opinion, the views of the political branches, and the positions held by powerful social institutions (e.g. corporations).” Specifically, she is troubled by the “8-1 decision” in Hosanna-Tabor v. EEOC (2012) (it was actually unanimous) which insists that churches and other religious entities must be free to decide “who will preach their beliefs, teach their faith, and carry out their mission.” But if the religion clauses do not protect the ability of religious entities to choose their own leaders and teachers without government interference, what do they protect?

In her haste to describe the Supreme Court’s move to “privilege” majority views, Robinson ignores Gonzales v. O Centro (2006) (protecting a small Brazilian-based church’s use of hallucinogenic tea); Holt v. Hobbs (2015) (requiring a prison to permit an Islamic inmate to grow facial hair as required by his faith); and EEOC v. Abercrombie & Fitch (2015) (holding a corporation accountable for refusing to hire a Muslim woman because she wore a headscarf as mandated by her understanding of Islam). She also neglects the many lower court cases that have protected religious minorities.  Majorities obviously can and do discriminate against minorities, but fortunately, they also protect and honor them with increasing frequency. 

The third section of the book, entitled “Law, Politics, and Economics,” contains excellent essays by Paul E. Kerry, Vincent Philip Muñoz, Anthony Gill, Steven D. Smith, Donald L. Drakeman, Marc O. DeGirolami, and Gerard Bradley. Drawing from a variety of disciplines, each of these essays argues directly or indirectly for religious liberty. 

Particularly relevant in light of Robinson’s essay, Smith offers an excellent response to academics and others concerned about the rise of “corporate religious liberty” as represented by cases such as Hosanna-Tabor and Burwell v. Hobby Lobby (2014). He shows that this concept is not at all a new development, as religious liberty advocates have long fought to free institutions such as churches and denominations (which, since the 19th century, have often been incorporated) from state control. He also points out that few academics or activists deny that non-religious corporations such as the New York Times Company should be protected by the First Amendment. 

Unlike Robinson, Smith does not ignore Gonzales v. O Centro. Instead, he asks a brilliant question about it: “Was the religious group that sued under RFRA leading to the Court’s unanimous decision . . . incorporated?  Did anyone care? Should anything have turned on the question?” He later observes that “corporate status is a legal construction that promotes the interests of the human beings who create and use” them. There is no good reason to deny First Amendment rights to a group of people who choose to incorporate. 

Other highlights from this section include Gill’s intriguing argument about how rational choice theory can help explain the rise of religious liberty, Muñoz’s account of how Supreme Court justices repudiated the founders’ natural rights understanding of religious liberty in favor of one grounded on human autonomy, and Drakeman’s demonstration that an originalist understanding of the Establishment Clause prohibits little more than the creation of a “Church of the United States.” Noteworthy as well is DeGirolami’s contention that recent theories that the Establishment Clause should be interpreted as requiring religious equality or nondiscrimination reflect the “view that Christianity is at best irrelevant and at worst obnoxious to the secular state.”

In the volume’s final chapter, Gerard V. Bradley observes that since the mid-20th century, advocates have had a tendency to defend religious liberty in terms of indifference and subjectivism. These are flimsy foundations, and among the consequences of this strategy is that over the past few years, “for the first time in American history, it became respectable to oppose religious liberty and its overarching value in our political order.” The remedy to this situation, Bradley argues against the prevailing winds of the academy, is that “[f]riends of religious liberty must yank its subject, religion, out of subjectivity and irrationality to which it has been consigned. They must reconnect religion and truth.”

The Cambridge Companion to the First Amendment and Religious Liberty provides a wonderful overview of religious liberty and church-state relations in America. Six of the essays argue directly and forcefully in favor of robustly protecting religious liberty, but even those essays that are more historical in nature suggest excellent reasons for offering substantial protection to what many founders called “the sacred right of conscience.”