Recovering an American Tradition

Religious liberty, like any freedom, requires careful compromises. But it is also unique, reflecting the fact that its subject includes individuals’ deepest convictions about their own nature and purpose, which is one reason why it enjoys explicit constitutional protection. While limitless exemptions for religiously informed action would render law meaningless, a lack of protections for citizens’ deepest-held and uncompromisable beliefs would ultimately do the same. The Supreme Court has taken to reassessing the content of these compromises in recent years, causing some progressives to feel angst and “disorientation,” as law professor Kate Shaw put it in a recent New York Times essay. But the Court is in fact on the right track, returning us to the sorts of compromises that long characterized the American political tradition and invite a pluralistic—if cacophonous—public square.

Before examining the specifics of Shaw’s complaint, some elaboration of the challenges that undergird the religious liberty debate provides more helpful context. So long as a general moral consensus prevailed in our nation’s history, the tension between general rules and individual exemptions has stretched our nation’s legal fabric minimally. And for now, Americans mostly agree about which acts are categorically beyond the pale (ritual child sacrifice comes to mind) and which are acceptable accommodations (such as conscientious objections to military combat). But with growing diversity along every axis and more strident polarization, consensus about which behaviors fall between the unobjectionable and unconscionable is breaking down. Conservatives reject the idea, currently being litigated nationwide, that states must allow religious exemptions to abortion restrictions. Progressives—down to the dissenting Supreme Court justices in the recent 303 Creative case—have difficulty accepting that they cannot compel religious traditionalists to affirm socially progressive pieties.

These examples illustrate both the challenge and importance of compromise. Without a workable understanding of where constitutional protections for religious liberties end and legitimate state police powers begin, there are only bad possibilities: persecutions creating ideologically uniform communities; despair about the possibility of majorities relinquishing space to conscientious objectors; and the loss of desire to live in a pluralist country altogether. It is hardly surprising, then, that the Supreme Court’s attempts to solve the constitutional piece of the puzzle have struggled to maintain a workable rule fostering pluralistic coexistence while respecting the First Amendment’s general solicitousness of religion. Its current rule is, officially, that neutral laws that apply generally but incidentally burden religious practice are kosher. But vanishingly few laws, according to the Court, really are neutral and applied generally. 

Few religious individuals or groups think this arrangement provides the security they seek as the dominant culture grows increasingly hostile to traditional views of family, sexuality, and the self. As many states’ responses to the Covid-19 pandemic indicated, religious needs are not always taken seriously, with access to liquor often treated as more essential than access to religious rituals. With gathering restrictions behind us (for now), religious Americans have returned their attention to a more durable threat: the expanding reach of our anti-discrimination regime. This often trades off against associational rights, but the friction is rarely greater than when those associations are hierarchical, non-egalitarian, and concerned with sexual ethics—that is, religious. 

It is unsurprising, then, to see progressives disapprove of a Court trending toward a robust application of First Amendment religious rights. Writing for the New York Times earlier this summer, Kate Shaw expressed her disappointment with the Court’s “disorienting elevation of religion.” Shaw’s discombobulation is reasonable on one front, at least: it is disorienting, after decades of the Court pushing in one direction, to see it now giving real heft to the First Amendment’s guarantees. In the two religion-related cases it heard this past term, the Court sided with religious plaintiffs. (As Shaw admits, “the legal question” in 303 Creative, the case of a woman who did not want to make websites for same-sex weddings, “was technically about speech, but religion was at the core of the dispute,” which is debatable framing but not outright wrong.) 

The Lemon Court upended an emergent order of coexistence, in which the state was not aggressively secularist but treated religion as an important piece of American civic life.

To simplify, the Court determined that religious individuals have the right to resist compelled expression that violates their conscience, and that religious accommodations under the Civil Rights Act must be given more freely than previously thought, though still only so far as to not impose a “substantial cost” on employers. To those who thought the First Amendment would yield to anti-discrimination law forever, this might indeed be disorienting. And, inasmuch as Shaw’s criticism of the Court is that it simply hands out wins to the wrong kinds of people—“Christian plaintiffs,” as Shaw notes, though Jews and Muslims have recently scored major wins, and doubtless will again soon—it says more about the analytical frames used by the Court’s critics than those favored by the Court. 

But Shaw does offer a more substantive criticism: the Court has “taken a sledgehammer to a set of practices and compromises that have been carefully forged over decades to balance religious freedom with other important—and sometimes countervailing—principles,” creating a “disorienting imbalance of values in American society.” While this criticism is serious insofar as it is grounded in the ongoing debate over balancing freedom of conscience with “principles like equality, public health, and simple fairness in law,” it is based upon a contestable-at-best premise. 

Shaw, channeling the current Court’s affinity for finding law in tradition, repeatedly refers to the old balance between religion and other values as “longstanding,” giving the impression that the Court has upended arrangements that have shaped American life since time immemorial. The Court has done no such thing. Shaw laments that the “First Amendment’s establishment clause was once understood to place limits on the government’s involvement with or facilitation of religion,” which at a high enough level of abstraction is true. But the jurisprudence she favors was in place from approximately 1971, when the Court came up with its infamous Lemon test, to 2019, when a 7-2 Court replaced it with a tradition-focused test in American Legion. That amounts to fewer than 50 years in which the First Amendment prohibited “excessive entanglement” between religion and state, despite evidence that our nation had long allowed plenty of “entanglement” in the form of religious symbols, public prayers, and even state constitutions “devoutly imploring” God’s assistance in establishing good government. Those Court-invented “limits” spanned a few decades, to be sure, but that is a blip on the radar compared to the pre-Lemon era, which constitutionally allowed religion to play a larger role in American public life. 

Shaw inadvertently channels her inner Justice Alito (who wrote the American Legion majority) when she appeals to those longstanding compromises. That is precisely what the 2019 Court’s establishment clause jurisprudence aims for, whereas the 1971 Court’s Lemon test does not reflect any compromises or anything “carefully forged” except the views of the justices on the Court at the time. It was invented from whole cloth, based on the justices’ moral intuitions. Now the Court focuses on whether a particular kind of state-church interaction has long been a part of the American landscape, such that it may be acceptable within the parameters of our great ongoing public discourse about truth and purpose. If the Court has “demolished” Lemon’s facade of moderation and compromise, it has only revealed the rich pluralism that lay in the ruins beneath. It was the Lemon Court that upended an emergent order of coexistence, in which the state was not aggressively secularist but treated religion as an important piece of American civic life.

Most of Shaw’s criticism is reserved for the Court’s Free Exercise jurisprudence, though, as she sees “the conservative supermajority’s boundless conception of the imperative to protect and accommodate the practice of religion in our public life” as a threat to “pluralism, democracy, and the mutual respect and tolerance both demand.” Central to this fear is Shaw’s (correct) anticipation that the Court will overturn its rule that a neutral and generally applied law can incidentally burden religious exercise. That rule, announced by Justice Antonin Scalia in 1990, is also “longstanding” in Shaw’s analysis, despite the fact that it overturned a different rule, under which state burdens on religion had to be narrowly tailored towards advancing a compelling state interest, that had been announced just a few years prior. Is there any evidence that it reflects a “carefully forged” compromise? Just the opposite. Immediately after the rule came down from the Court a near-unanimous Congress passed a law, the Religious Freedom Restoration Act, compelling a return to the old test. (The Court later struck down RFRA to assert its role as final arbiter of constitutional meaning.) If there was any consensus or compromise position as late as the 1990s, it was that religion deserved more solicitous treatment from the Courts—not less. 

Shaw’s appeal to procedural values, such as retaining stable doctrines and respecting longstanding practices and compromises, thus actually militates against her argument, and paints the current Court in an excellent light. Further, her substantive argument for cabining religious freedom in order to maintain a healthy balance between religious rights and pluralism has things backwards. 

There are compelling reasons to give people and religious institutions freedom to follow their consciences and doctrines, within the limits set by whatever is left of our moral consensus.

To illustrate what might happen if the Court continues granting exemptions from general laws, Shaw trots out some horribles: “same-sex couples wishing to … marry would find themselves refused service by wedding vendors like bakers, photographers, and calligraphers. And the license to discriminate may not stop there. What about birth announcements for the children of same-sex couples? Or entertainment at their birthday parties?” Noting that the 303 Creative opinion lacked “an obvious limiting principle” (before stating its limiting principle: “it encompasses just businesses whose goods or services can be described as expressive”) her widely-shared fear is that anti-discrimination law will be rendered a near-nullity, as people will be able to wriggle out of just about any service they do not wish to provide to others. 

That seems unlikely, given the trends in Americans’ social views, and the Court’s clear limiting principle that discrimination based on status is unacceptable and expression alone is protected. (The vaunted “conservative supermajority” always seems to be on the cusp of announcing frightening rules it could have already announced if it really wanted to.) But even if it were likely, which arrangement is more conducive to pluralism: forcing unwilling participants to compromise their moral convictions, or allowing people to opt out? 

Neither is perfect, reflecting the intractable challenge at the heart of the debate about conscience and law. A satisfactory balance will only emerge when political communities have enough of a shared moral sense to agree on which bases for discrimination are legitimate. But in our world of least-bad, which arrangement allows Americans to live together in peace, even if through gritted teeth? Probably the one preserving the voluntariness of as many social and economic arrangements as possible. As a hedge against the worst outcome—war of all against all—erring on the side of freedom of conscience seems prudent. 

On a legal level, the unsavory fact of living in a free society remains true: Free expression and association will be better protected than the right to not be discriminated against. And at the level of principle, living in a fallen world—the kind that makes pluralism necessary to begin with—means there are compelling reasons to give people and religious institutions freedom to follow their consciences and doctrines, within the limits set by whatever is left of our moral consensus.

There is one more step progressive critics of the Court could take to shore up their argument. Right now, as religious people across the country know well, the spirit of pluralism hardly animates the culture. Armed with the resonant language of anti-discrimination law, groups demand that religious institutions acquiesce to ideas about the human person repugnant to religious traditions. There is an obvious disconnect between the defensive posture of progressives worried about religious people’s “license to discriminate” and the ongoing inquisition against traditionalist individuals, businesses, and schools for their refusal to confess to new orthodoxies. 

Here’s a truce: progressives put away their swords, and conservatives will put down their shields.