Chevron interferes with independent judicial judgment, and Christopher Walker calls it nonpartisanship.
In the next few months, the Supreme Court will decide Masterpiece Cakeshop, one of a series of cases in which conservative Christians have sought exemptions from public-accommodation laws that ban discrimination on the basis of sexual orientation. Like most of these disputes, the case involves a small business that declined, because of the owner’s Christian convictions, to perform a service in connection with a same-sex wedding—in this case, designing and baking a wedding cake. In most of these disputes, the lower courts have been unwilling to grant businesses religious exemptions from anti-discrimination rules.
Somewhat surprisingly, however, at oral argument in Masterpiece Cakeshop last December, the justices’ questions suggested that the Court might rule in favor of the bakery. Justice Kennedy, in particular, hinted that he believed the state’s denial of an exemption was an example of anti-religious bias against the conservative Christian who owns the bakery, Jack Phillips. Such bias would bring the case within the old “compelling interest” test of Free Exercise Clause cases like Sherbert v. Verner. Under that test, the state would prevail only if it showed that it had a compelling interest in applying the anti-discrimination laws to the bakery, notwithstanding a substantial burden on Jack Phillips’s religious exercise, and that the state had chosen the least-restrictive means of advancing that interest.
Justice Kennedy has been known to change his mind after oral argument, and one shouldn’t assume his questions indicate how he will vote. Besides, Masterpiece Cakeshop presents genuinely difficult legal questions. However the Court decides the case, though, deeper issues are worth reflecting on. Cases like Masterpiece Cakeshop suggest that religious freedom for traditional believers—mostly, but not exclusively, conservative Christians—is becoming more and more problematic. Cultural and political trends make the position of traditional believers increasingly precarious, and these trends inevitably manifest themselves in our law.
Culturally, American religion is becoming increasingly polarized. A significant and rapidly increasing percentage of Americans say they have no religious affiliation, a development sociologists refer to as the “Rise of the Nones.” Nones are especially prevalent among young Millennials, about 36% of whom say they have no religious identity. But religion is not simply disappearing. Around 40% of Americans continue to maintain a strong religious identity, measured in terms of things like church attendance and frequency of prayer, a percentage that has remained remarkably consistent for decades. Nones come, not from the ranks of the traditionalists, but from what used to be the moderate center of American religious life. As in many aspects of American society, when it comes to religion, the middle is dropping out.
The increasing religious polarization suggests that, unlike in the past, traditional believers cannot count on a widespread, if thin, cultural sympathy for their commitments. A large and growing percentage of Americans has no experience of traditional religion—and, to the extent it has had such experience, rejects it. Disagreements and misunderstandings are likely to be amplified by the fact that Nones overwhelmingly reject traditional teachings about sexuality, which they see as psychologically damaging and essentially unjust, an affront to the dignity of persons. It’s not coincidental that so many of our current disputes about religious liberty, like Masterpiece Cakeshop and Hobby Lobby, involve sexuality in some way.
Another cultural trend that should worry traditional believers is Americans’ expanding concept of equality. For many Americans, equality no longer means simply equality before the law. Rather, it means a rejection generally of distinctions among groups and individuals, including religious distinctions—a rejection of “difference per se.” Beliefs and practices that exclude outsiders from a religious community are presumptively suspect, because of the implicit judgments they suggest: some groups, apparently, think their beliefs and ways of life superior to others’. Such judgments seem impolite, ungenerous, and inconsistent with the spirit of true equality, which requires that each religion acknowledge the basic correctness of all the others.
The expansive notion of equality—equality as sameness—poses challenges for traditional religious groups, most of which continue to insist, as a matter of religious conviction, on maintaining boundaries with the followers of other religions. This doesn’t mean hostile relations, necessarily, only boundaries. For example, some evangelical student groups, while encouraging charity toward everyone, limit their membership to persons who share their faith commitments. Such limitations are apt to seem arbitrary and illegitimate to many Americans. In fact, a number of religious-liberty cases involve universities’ decisions to deny religiously “exclusive” student organizations access to campus.
These cultural trends are exacerbated by a political one: the growth of activist government bureaucracies at both the federal and state levels. Inevitably, just as it impinges on the activities of other citizens, the expanded regulatory state will impinge on traditional religious groups and their members. The more rules, and the more subjects covered, the greater the potential for conflict. But traditionalist groups face a specific threat: not only a growing state, but an activist state committed to advancing values they oppose. Because they reject the idea of equality-as-sameness, these groups find themselves standing in the way of the progress the state sees as its central mission. As a consequence, they should expect to become targets in a way other citizens will not. Justice Kennedy may have been getting at this in raising the issue of anti-religious animus in the Masterpiece Cakeshop argument.
In the nineteenth century, Tocqueville famously observed that American political questions inevitably become judicial ones. His observation remains true today. The cultural and political trends I have described have already begun to manifest themselves in our courts. Most religious-liberty cases are resolved, under federal or state law, on the basis of the compelling-interest test. (Under a decision called Employment Division v. Smith, the Supreme Court generally applies a different test for purposes of the federal Free Exercise Clause, but I leave that aside for now). But this test also should also make traditional believers uneasy. “Compelling interest” and “substantial burden” are vague concepts the courts never really define; the concepts turn almost entirely on the intuitions of particular judges. Because, as Glenn Reynolds writes, judges, especially federal judges, largely come from an upper-middle class professional background that mutes religious commitments, their intuitions are likely to be hostile, or at least indifferent, to many concerns traditional believers think important. And wait till the Millennial Nones start becoming judges!
I will leave for a further post a more detailed discussion of how the Rise of the Nones and our growing religious polarization, as well as the rise of the activist government, are likely to affect our future law of religious freedom. For now, it’s worth watching Masterpiece Cakeshop for some early indications.