Cultural and political trends make the position of traditional believers increasingly precarious, and these trends inevitably manifest themselves in our law.
Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities.
Equality of treatment between religion and nonreligion has also always been a part of our tradition and a theme in the Supreme Court’s religion-clause jurisprudence. It has at once been a requirement of religious liberty and also the rule where special treatment is neither required nor permitted.
However, in the Court’s decisions construing the meaning of the First Amendment, equality between religion and nonreligion has traditionally been a subsidiary value. The more fundamental norms have been noninterference and noninvolvement. Religion, under this traditional view, is a unique human phenomenon. It is especially sensitive, especially important, especially powerful, especially divisive, or maybe all of these.
Over the past several decades our assumptions have shifted dramatically as the idea of equality between religion and nonreligion has moved from the periphery to the center of religion-clause theory. During the 1990s, that idea assumed a central place in the Court’s religion-clause case law, and it became an increasingly powerful norm among scholars. Behind this shift has been the growing secularism of American society and the increasing importance of equality principles in American culture, law, and philosophy more generally.
In this milieu, special treatment for religion, especially special protections for religious exercise, increasingly seems unfair. There are differences between religious beliefs and practices and nonreligious belief systems, all would agree. However, for many, these differences are not ones that matter when assigning the burdens and benefits of government. The demands of secular conscience can be just as powerful, just as integral to individual identity, and just as deeply held as the demands of religious conscience.
Why should religious exercise receive special protections that secular convictions do not? Religious entities often serve the same public purposes as secular nonprofits do. Why should religious agencies operate under special disabilities? Increasingly, equality between religion and nonreligion has been envisioned as a primary, if not the primary, religion-clause value.
Nowhere have these fairness concerns been greater than in the context of religious exemptions from the requirements of state law. Prior to the Supreme Court’s landmark decision in Employment Division v. Smith (1990), the Court interpreted the Free Exercise Clause to afford special relief where religious practice is burdened by neutral, generally applicable laws and regulations. According to the Court’s familiar rule from its 1963 decision in Sherbert v. Verner, where a law places a substantial burden on religious practice, religious believers are entitled to an exemption from the law unless its application to the believer is necessary to achieve a compelling state interest. In Smith, the Court turned its previous free exercise doctrine on its head. According to the Smith Court, the Free Exercise Clause prohibits government discrimination, but with few exceptions it does not mandate relief where neutral, generally applicable laws impinge on religious practice.
The primary concerns of the Smith Court were with the practicality and administrability of the Sherbert approach, not with religion’s special treatment; and, indeed, the Court envisioned, and approved, legislative accommodation. Likewise, few commentators celebrated the Court’s decision for its equalizing effects on religious and nonreligious practices. The initial reaction to Smith among those active in the religion-clause field was, instead, one of widespread shock and even outrage.
However, Smith was a catalyst for quick and dramatic change in prevailing attitudes regarding religion’s status under the First Amendment. Within a few years, scholars were repeatedly questioning the special treatment that religion had received in the Court’s pre-Smith case law and even the permissibility of legislative accommodations limited to religious entities.
Soon Smith was re-envisioned as an equality decision and increasingly defended as such. Other scholars favored solving the fairness problems with religious exemptions by expanding protections to include analogous secular commitments, including by broadening the definition of religion. Today, calls for the equal treatment of secular and religious conscience keep increasing as a growing number of scholars from inside and outside the religion-clause field have joined in the debate.
To be sure, in its most recent decisions, the Supreme Court has reaffirmed the distinctiveness of religion in both the Free Exercise and Establishment Clause contexts. The Court has not retreated from its decision in Smith, but it has held that legislative and administrative accommodations for religious exercise need not come “packaged” with benefits for nonreligious entities. On several occasions, the Court has robustly construed federal religious liberty legislation modeled after the approach in Sherbert, including in its recent ruling in Burwell v. Hobby Lobby Stores, Inc. The Court has also continued to construe the First Amendment to place special limitations on government interference with the internal affairs of religious groups, and it has retained special limitations on religious speech by the government and on government funding of religious groups.
In fact, even when the Supreme Court’s embrace of equality reached its zenith in the early 2000s, the Court was still treating religion differently in many contexts and in many ways. Equality between religion and nonreligion has never been the sole or even the dominant value in the Court’s religion clause jurisprudence.
Different, But Why?
Among those who study the religion clauses, however, the idea of equality has maintained its grip. While the Court treats religion differently in numerous ways, we remain preoccupied with the idea of equality, and we keep talking about equality because we have been unable to imagine religion as unique in a way that is constitutionally relevant. Religion is distinctive, the Court has told us, but we do not know why or how. We lack a persuasive account of religion’s distinctiveness that can explain why religion is unique and how it should be treated differently in the cases that come before the courts.
In decisions such as Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), for example, the Supreme Court has done little to explain why religion should receive the special treatment that it has required or permitted, and the accounts of religion’s distinctiveness that scholars offer have not seemed convincing. Many of the features that scholars have pointed to do not seem unique to religion. Secular convictions can be just as deeply and intensely held and just as integral to one’s self-understanding as religious ones can. Nonreligious belief systems can answer ultimate questions in comprehensive ways. They can contribute to the public good, and they can be a source of division and strife.
Other features that scholars have pointed to may be unique to religion, but they do not seem to support persuasive arguments for special treatment in an increasingly pluralistic society.
For example, scholars have defended special protection for religious practice from burdensome state laws on the ground that religion involves duties to a higher, transcendent authority and these duties take precedence over the requirements of state law. Scholars have echoed the words of James Madison in his Memorial and Remonstrance Against Religious Assessments: It is the duty of every individual to worship the Creator as his conscience directs, and “[t]his duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” However, in a community as pluralistic as our own, an argument like this sounds sectarian. Indeed, it has also seemed increasingly threatening as the tides in the culture wars have shifted and requests for religious exemptions have challenged developing public norms related to same-sex relationships and reproductive choice.
There is, however, more to Madison’s statement than scholars have supposed. If we focus on his 18th century theism, Madison’s words may, indeed, sound sectarian and his argument perhaps even dangerous. Many Americans are not Christians today, and an increasing (though still small) number do not believe in God at all. However, if we reach behind his 18th century language, what Madison is saying can be expressed in more general terms that can be more broadly understood and appreciated by those of different religious traditions and none at all. Madison’s statement and other Founding-era views about the nature of religious belief and the proper relationship between religion and government reflect and express features of religion that are broadly shared across religious traditions and also relate to experiences that we all share. We are not all theists or even religious believers. However, we can all appreciate what Madison had to say about religion and religious liberty.
When Madison describes religion as a duty to the Creator that involves worship and homage, he is speaking about a relationship between persons and the ultimate reality or power that grounds everything that exists. At the root of religious faith is the common human experience of creatureliness or finitude. We find ourselves in a world that we did not make and can only barely control. We seek to understand our world, and we also want to know how we ought to live. As we ask questions, a still more basic question arises. From whence do we come? What is the source of our lives and all that is, and how does the answer to this question inform the answers to other questions about human purposes and goals? In our reflections, we confront the source and ground of all that is as a question or concern.
For the religious person, this ground or source is more than just an idea or a question. For the religious believer, the divine is also present as a very real part of their lives and is experienced as something good and trustworthy. The religious person is in a relationship with the divine. The religious person worships, yields, bows down, loves. Indeed, in most religious belief systems, the principal goal of the religious life is some form of connection or union with the divine, and salvation or liberation or fulfillment inheres in this connection.
Religion is not magic, and it is not therapy or philosophy. There are utilitarian elements within all religious traditions. However, religion does not involve harnessing divine power to achieve human ends on our own terms. It also does not involve using our own powers to understand and control our circumstances within the limits of nature and human nature. Religion involves communion or union with the divine that is itself humanity’s highest end. For the believer all of life is lived in light of this relationship, and it reaches deep into the many facets of human life and experience.
Its Uniqueness Does Not Make Religion Sectarian
Different religious traditions understand the divine in different ways; the divine may be personal or impersonal, plural or unitary, transcendent or immanent. The relationship that the believer seeks may be one of obedience, love, unification, some combination of these, or something else. Religious believers also differ about how much we can know about the divine, how we acquire knowledge, how we attain union or communion with the divine, and how we should live our lives in light of this connection. The world’s religious traditions are diverse, but most (though not all) religious traditions share the basic features expressed in Madison’s words, and these features make religion distinctive.
Religion involves the relationship of persons with the divine, and this was what was at stake for those who drafted and ratified the First Amendment. Too often, scholars conflate religious belief with some other category or categories, and they do not engage what religion is really about. When this happens, we miss what has been at the heart of our tradition of religious liberty.
Religion’s uniqueness does not make it sectarian. Sometimes we confuse religion with a particular instance of faith or set of instances, and this instance can strike us as unbelievable, silly, or dangerous. However, the roots of faith precede particular forms of faith, and these roots lie deep in human nature. Religion arises out of our capacity to reflect on our lives and the larger world, and it holds the promise of engagement with its source. Perhaps there is no greater reality or power grounding our experiences. Perhaps there is, but we can know nothing about it, and all religious traditions are human constructions. Perhaps the divine is real but is not good or trustworthy. However, perhaps not. Appreciating what Madison and others in the Founding era had to say about religion and religious liberty does not require firm faith or even faith at all. It only requires an openness to the possibility that religious experience can be real, revealing, and salvific in the ways that believers envision. If we are open to this possibility, what mattered to those in the Founding era should still matter to us today.
Some reject even this openness. Brian Leiter, for example, provocatively describes religious belief as “a culpable form of unwarranted belief.” However, the insistence that real, meaningful and salvific religious experience is not even a reasonable possibility cannot be the touchstone for our construction of the religion clauses. Such a construction is at odds not only with the historical foundation of our commitment to religious liberty but also with the beliefs that most Americans hold and almost certainly will continue to hold.
The foundation of religious belief and practice in common human experience ensures that religion will remain an important feature of almost all human cultures. In a community with the history and religious make-up of our own, and, indeed, in any political community, we must leave open the possibility that the religious commitments that many people hold refer to something true about the world and about human ends and purposes. Any other assumption would be unstable. It would be inconsistent with human nature and human propensities, and it would ignore human realities.
For Madison and others in the Founding era, several implications followed from the nature of religious belief, and from these flowed a series of more specific principles. The fact that religion involves the relationship between persons and the divine means that religion is by its nature a supremely important human concern. Religious commitments are not more meaningful or valuable than nonreligious convictions as if they can be measured on the same scale and religion somehow comes out ahead. Rather, religion is sui generis. It has a unique object. As Paul Tillich, a leading 20th century Protestant theologian, explained, it is not just ultimate concern, but ultimate concern about what is ultimate.
Religious faith is also essentially voluntary. A relationship is not a relationship unless it is free. No one can worship for another, trust for another, or love for another. Religious faith also generates ethical commitments that support public virtue and the formation of public values. At the same time, the supreme importance of religion as a human concern means that religious belief has a special potential for civic division and strife when linked too closely with government.
Respect for Conscience
The foremost principle that flowed from these implications for Founding-era Americans was liberty of conscience in matters of religious belief and practice. Individuals have a right to choose and practice their faith without interference by the state. In general, Founding-era Americans had intentional interference with conscience in mind as this was their recent experience. However, their principle and the insights and concerns that lay behind it reached further, and they were solicitous when conflicts between the demands of conscience and the requirements of neutral, generally applicable laws arose.
For example, most states in the new nation exempted Quakers and other religious pacifists from compulsory military service at least as long as the objector provided a substitute, paid a financial equivalent, or performed some sort of alternative service. The House of Representatives adopted such a provision for the federal Bill of Rights, although there was no counterpart in the Senate or in the final compromise that forms our First Amendment today.
In their exchanges, House members disagreed about whether such an accommodation should be a matter of constitutional right or legislative discretion, and they disagreed about whether a natural right was involved. Some trusted that legislative benevolence would be sufficient to protect conscience while others did not. However, they agreed that accommodations should be made, and they did so because they respected the capacity of persons to seek the divine and their desire to follow conscience where it leads.
Conflicts between religious practice and neutral, generally applicable laws did not occur often in the Founding era. Late 18th century America was largely morally homogenous, and conscientious objection by religious pacifists presented an instance of moral perfectionism rather than genuine moral pluralism. Today, our circumstances are very different. We have more religious diversity and greater moral pluralism that often follows along religious lines. Government is more expansive, and conflicts are more common. Our history includes many instances of legislative benevolence, but it also includes many examples of legislative resistance to the claims of dissenting conscience.
Those who drafted and ratified the First Amendment probably did not envision a general right of exemption under the Free Exercise Clause. The Supreme Court’s position in Smith probably more accurately reflects their expectations than does Sherbert. However, this expectation should not be the end of our historical inquiry or our interpretation of the First Amendment. Shared principles informed our tradition of religious liberty, and these principles were animated by shared concerns and purposes. Those in the Founding era often disagreed about how far to take their principles, how to understand their requirements, and how to apply them in specific situations, and their understanding developed over time.
For example, while most Americans in the very early Republic would not have understood liberty of conscience to prohibit religious tests for office-holding, many states quickly abandoned or relaxed their tests in the decade following the adoption of the federal Constitution, and today few would argue with the Court’s holding in Torcaso v. Watkins (1961) that such tests violate the Free Exercise Clause. So when it comes to construing the First Amendment, two things should be going on: We should understand and apply principles like free exercise in light of the purposes and concerns that animated them, even as we take into account the conditions of modern American society.
For Madison and others in the Founding era, we respect conscience in conflicts with the state because we respect the capacity and desire of persons to seek the divine. We also do so because forcing believers to betray their consciences undermines moral dispositions essential for democracy and sparks resistance that undermines civic harmony.
It also deprives the community of important moral resources. People of Madison’s time recognized the inevitability of religious diversity in conditions of freedom and also its desirability. They realized that our understanding benefits from dissent even when the dissenting ideas are wrong. All of these insights support a right of exemption under the Free Exercise Clause today, and they also mean that our interpretation of the Establishment Clause should leave generous room for legislative and administrative accommodation even when exemptions are not required.
Defining Limits without Balancing
Of course, there must be limits on free exercise, and those in the Founding era envisioned limits. The rights of conscience do not extend to acts that endanger the existence of the state, the public peace, or basic conditions of public order, Madison argued. Liberty of conscience also does not authorize believers to infringe on the natural rights of others to life, liberty and property or the legal rights created by the state to protect these rights. Similar limits appeared in state constitutional provisions guaranteeing liberty of conscience.
Today we tend to think of the limits on free exercise as a matter of balancing. We weigh the burdens on religious exercise against the strength of countervailing state interests, and we protect religious exercise until these state interests outweigh the burdens on conscience. The compelling state interest test developed in Sherbert is, in theory, strongly weighted in favor of free exercise, but in practice it has often been much weaker than that.
However, James Madison was not balancing. Given his assumption about the priority of conscience, balancing would not have made sense to him. Madison’s limits did not come at the expense of religious liberty; they were the preconditions for religious freedom and liberty more generally. The existence of the state and the preservation of peace and basic order within the state make religious liberty possible by protecting religious believers from the interference of others with different views. At the same time, religious liberty would not be possible if the state shielded practices that invaded the rights of those whose consciences led them to different conclusions.
Madison envisioned the limits on free exercise narrowly. Any other approach would not have fit with the respect that he accorded conscience. In the book from which this essay is drawn, I argue that we should build on Madison’s views to construct limits on free exercise that are narrow but meaningful, consistent with the principles that have shaped our tradition of religious liberty, and more definite and less manipulable than balancing approaches have been. I also argue that some carefully defined limits are appropriate where legislative or administrative accommodations burden third parties.
We must be careful, however, not to restrict religious practice just because it challenges our public values or conveys a message that is offensive to others, if it does not involve concrete harms or deprivations. Our understanding benefits from dissent, those in the Founding era argued, and we know this too. Throughout our history, religious and nonreligious dissent has contributed to the development of our public values. America’s social and political conscience has not been monolithic, and we are constantly forging and reforging our national values over time. In this process we have seen that yesterday’s dissenter can become tomorrow’s moral exemplar. Space for religious and moral diversity is essential to individual freedom and also for the development of communal values. The government plays an important role in promoting public values and can also take steps to reduce the offense associated with dissent, but we should not seek to eliminate dissent even when we are certain we are right.
Not a Zero-Sum Game
In our contemporary debates over religious exemptions, there has been an increasing assumption, or at least expectation, that religious accommodations will come at the expense of state interests. However, the exchanges in the First Congress regarding protections for conscientious objection remind us that conflicts between believers and the state can often be resolved through compromises that take account of the needs of both parties even when critical government interests are at stake.
Exemptions for religious pacifists in the Founding era were costly. The new nation had just fought a war for independence with England, and Quakers and other pacifists refused to fight even when manpower was low. Exemptions for conscientious objectors are also associated with significant secular benefits that can induce others to feign conscientious objection or possibly even change their actual beliefs. However, most states in the new Republic exempted pacifists from military service, and they addressed these problems by requiring some form of contribution to the defense of the state that would reduce the collective costs of accommodation as well as the secular benefits associated with it.
While conflicts between believers and the state cannot always be resolved through compromises that address the needs of both parties, they often can. Our interpretation of the First Amendment, including its free exercise protections and Establishment Clause limits, should encourage and facilitate these compromises. Indeed, a well-conceived right of exemption should push religious believers and government officials to work together in good faith to explore all possible solutions to conflicts before reaching an impasse.
Our legal rules should create incentives that combat both intransigence on the part of government officials and a sense of entitlement among believers that disregards the effects of religious practice on others. When judicial intervention is sought, it should be because the parties have reached an impasse that truly represents the limits of what is tolerable to believer and manageable by the state. Too often today, religious liberty is pitted against the public good and the rights of others. However, we should not be having “battles” over religious liberty. We should instead follow George Washington when he wrote:
In my opinion the Conscientious scruples of all men should be treated with great delicacy & tenderness, and it is my wish and desire that the Laws may always be as extensively accommodated to them, as a due regard to the Protection and essential Interests of the Nation may Justify, and permit.
Affirming the distinctiveness of religion and construing the First Amendment to afford robust protection for religious exercise do not mean that we should not care about secular convictions. Indeed, I argue in my book that appreciating the distinctiveness of religion gives us a stronger foundation for protecting secular moral commitments than can equity norms. However, religious convictions and secular conscience are not fully analogous, and we cannot simply enfold secular commitments into the category of religion under the First Amendment.
 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005), quoting Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 338 (1987).
 Holt v. Hobbs, 135 S. Ct. 853 (2015); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).
 See Pew Research Center paper, “America’s Changing Religious Landscape,” May 12, 2015.
 Brian Leiter, Why Tolerate Religion? (Princeton University Press, 2013), p. 81.
 Paul Tillich, Dynamics of Faith (Harper and Row, 1957), pp. 9, 12.
 See the deliberations on the conscientious objector provision that took place in the House of Representatives on August 17, 1789 and August 20, 1789. Debates and Proceedings of the Congress of the United States, Volume I, edited by Joseph Gales (Gales and Seaton, 1834), pp. 778-80 (August 17) and p. 796 (August 20).
 For the limits on free exercise that Madison envisioned, see his 1776 “Proposal for the Virginia Declaration of Rights,” reprinted in Papers of James Madison, Volume 1, edited by Robert A. Rutland and William M.E. Rachal (University of Chicago Press, 1973), pp. 174, 175. See also two of Madison’s letters: his letter to Edward Livingston of July 10, 1822, Writings of James Madison, Volume 9, edited by Gaillard Hunt (G.P. Putnam’s Sons, 1900-10), pp. 98, 100; and his 1832 letter to Reverend Adams, Ibid., pp. 484, 487.
 Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (Cambridge University Press, 2015).
 See Washington’s October, 1789 letter to the Society of Quakers, Papers of George Washington: Presidential Series, Volume 4, edited by W.W. Abbot and Dorothy Twohig (University Press of Virginia, 1993), pp. 265, 266.