In response to: Reimagining Religion’s Distinctiveness in American Law
I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties.
Professor Hart critiques my understanding of religion for following the modern tendency to envision religion in individualistic terms. In America we have shifted towards viewing religion as “a personal quest for meaning,” something “deeply personal” and “private,” rather than a “corporate identity” or a matter of institutional belonging. According to Professor Hart, understanding religion as something deeply personal and private ignores religion’s institutional features and significantly increases the cost of religious liberty. Individual faith can come in such variable forms that accommodating the demands of individual conscience may make “conducting the affairs of government … impossible.” Professor Hart’s image of “potentially outraged believers” with “easily offended consciences” evokes Justice Scalia’s argument against a right of exemption in Employment Division v. Smith: In an increasingly pluralistic society where individuals often draw their own lines regarding religious demands, a right of exemption “court[s] anarchy.”
Professor Hart suggests that it would be better to understand religious liberty in corporate terms. We should protect “corporate expressions of religion more than personal ones.” In other words, institutionally-based understandings of faith should receive greater protection than individual ones, and Professor Hart envisions the state negotiating conflicts with religious institutions and their leaders rather than with individual believers. The result will be less litigation and a more manageable framework for protecting religious liberty.
Professor Hart is surely correct that we miss important facets of faith if we view religion as a purely private or personal matter, and I have not intended to fall into the trap of envisioning religion as just a personal quest for meaning. However, we also misunderstand religion if we set personal and corporate conceptions of faith against one another. Religious faith is at once both deeply personal and also socially embedded. Religious communities provide the context within which religious ideas develop and faith traditions are formed, reformed, and transmitted. Individuals, both the orthodox and the dissenter, play a role in this process, and it is ultimately individuals who believe and worship. Religion, I have argued, involves the relationship of persons with the divine, and it is individuals who enter into these relationships. Some believers define their faith largely in concert with the teachings of a particular religious community. Others depart from official teachings to a greater or lesser extent, and some believers stand outside religious groups altogether. However, faith is always the act of an individual, and when it is serious and sustained, it always has a communal dimension even if engagement with others does not result in community membership.
Religious liberty, therefore, must have both individual and corporate dimensions. In the past I have argued that a strong right of autonomy for religious organizations is essential to the free development and transmission of religious ideas and, thus, to individual freedom as well. In the book from which this essay is drawn, I focus on the relationship between the believer and the state, and in this context, additional considerations are involved. In our tradition of religious liberty, we have protected individual conscience in conflicts with the state because we respect the capacity and desire of persons to seek the divine and to follow conscience where it leads. Sometimes conscience leads in unorthodox directions, and our solicitude for conscience cannot be limited to those who follow official doctrine. Believers are entitled to draw their own lines, the Supreme Court has held.
Professor Hart argues that those in the founding era supported religious liberty because of the benefit of religion for society. Certainly founding era Americans viewed religion as an important source of public virtue needed to support democratic self-government, and the movement towards disestablishment reflected their view that government harms, not helps, religion when it interferes in matters of doctrine or institutional governance. Those in the founding era also recognized that forcing individuals to betray their consciences undermines the moral dispositions essential for democracy and sparks resistance that undermines civic harmony. However, the founding era commitment to religious liberty was not primarily utilitarian, and liberty of conscience, in particular, followed first and foremost from the primacy of humanity’s relationship with the divine and the essential voluntariness of this relationship.
Professor Hart argues that the “legal practice of protecting religion from the state … is far removed from the history of church-state relations in the West.” Church and state have been deeply intertwined in Western history, and the power of spiritual authorities has rivaled, if not surpassed, that of temporal rulers. However, in the American case, our commitment to religious liberty has been shaped by and through the experience of religious dissent. The founding era commitment to liberty of conscience rejected past restraints and penalties on dissenters, and in America, the commitment to the separation of church and state grew and expanded in the eighteenth and early nineteenth centuries as successive groups of Americans learned the old lesson that government can support error as well as truth.
However, Professor Hart is right that today’s situation is different and that contemporary calls for the protection of religion from the state “make perfect sense.” Those in the founding era were primarily concerned with intentional government interference with religion, but today most conflicts involve neutral laws of general applicability that incidentally burden religious practice. When the size of government was small and society largely morally homogeneous, this type of conflict was uncommon. However, as Professor Hart observes, today “[t]he reach of government through regulations and social services has become … formidable.” In addition, moral pluralism, often following along religious lines, means that conflicts also occur when religious practice challenges prevailing public values.
For Professor Hart, the many ways in which church and state come into conflict in modern America means that religion needs protection from the state, but it also means that we cannot define religious liberty too expansively. Protecting corporate expressions of faith more than personal expressions is one way of protecting conscience without making the principle of free exercise too unwieldly.
Ilya Shapiro draws a very different conclusion. The increasing conflicts between church and state reflect the growth of government beyond its constitutional boundaries. Ilya Shapiro is especially troubled by the increasing tendency to use government power to enforce ideological conformity and stamp out dissent. Rather than cabin the scope of religious liberty, he argues that we should reject illegitimate government purposes and expand the space for individuals to make and follow religious and moral choices about how to lead good lives.
Part of the purpose of the book from which my essay is drawn is to show that it is possible to construct a strongly protective right of exemption under the Free Exercise Clause that is feasible and fairly treats believers from different religious backgrounds and degrees of orthodoxy. The right that I propose is also designed to push government officials and religious believers to work together to resolve conflicts extrajudicially. As I have argued in my essay, even when government interests are important and urgent, it is often possible to resolve conflicts between believers and the state through compromises that take into account the needs of both parties. We should interpret the religion clauses of the First Amendment in ways that facilitate and encourage efforts by government officials and religious believers to reach such compromises whenever possible. Robust protection for religious liberty need not be impractical even in an expansive state.
Ilya Shapiro is right, however, that government will swallow up religious liberty if the departure from public values, without more, is a sufficient reason to limit religious exercise. The freedom to express unpopular ideas is an essential aspect of a free society. As I have argued in my essay, space for religious and moral diversity is necessary not only for individual freedom but also for the development of communal values. Human understanding is limited, and it develops. Dissent plays an essential role in this process.
I ended my essay by briefly mentioning another argument that I make in my book. Appreciating the distinctiveness of religion gives us stronger reasons for protecting secular conscience than does viewing religion and nonreligion as interchangeable. When we collapse the distinction between religious and nonreligious belief, religion begins to disappear. It becomes an analogous category, whether it is deep-seated moral commitments, convictions central to personal identity, or even just an exercise in autonomy, an interest, or preference that is easily outweighed by countervailing state interests. Religion is not seen as what it really is. It is not about a relationship with the divine. It is not about the effort of persons to connect with the ground and source of all that is and, indeed, to share in the eternal.
Secular moral commitments are also not seen for what they can also be. The relationship between the believer and the divine is explicit, but the reality or power that the believer seeks is also present in secular moral reasoning. When the nonbeliever seeks to do what is right and avoid wrong, the ground and horizon of her commitments is the source of all being and value that the believer desires to know. The same ground is implicit when nonbelievers seek not just to live but to live good and meaningful lives. We are moral agents with the capacity and desire to pursue the right and the good. The ground of moral reasoning is also the ground of human freedom. We have been made to pursue the good in freedom just as the divine must be known in freedom. Appreciating the distinctiveness of religion allows us to see the sacredness of both secular and religious conscience and, indeed, the sacredness of human beings.
What forms of protection should be adopted for conflicts involving secular conscience is a complicated topic. An adequate analysis must address the role of legislatures and administrators as well as the role of courts and constitutional law. I have argued that we cannot simply enfold secular commitments into the category of religion under the First Amendment. I also do not think that we can expand the Religious Freedom Restoration Act (RFRA) to cover both religious and secular conscience as Ilya Shapiro suggests. The compelling state interest test in RFRA is at least in theory a demanding test, and the right of exemption I defend in my book is very robust. Expanding either to include secular moral commitments, even just those that are strongly held or deeply important to individuals, would result in weakening the right. Nor is it unfair to afford religious conscience special protection. Religion is a unique phenomenon, and violations of religious conscience involve a unique harm. The religious believer who is required to violate their conscience is forced to betray not only their principles but also their relationship with the divine.
However, our protections for religious conscience and the reasons for these protections should inform the interpretation of other constitutional liberties and also our views about the purposes and limits of state action. Religious freedom and freedom for secular conscience are both imperatives of human dignity even if we cannot equate them. Thus, for example, at the very least, legislative and administrative actors should be solicitous when conflicts arise between secular conscience and the state, and they should also be reluctant to adopt coercive rules involving matters that are the subject of deep or widespread moral disagreement within the political community. The state has an important role in transmitting and reinforcing shared moral values that support communal life, but an educative role need not be a coercive one.
 494 U.S. 872, 888 (1990).
 See, for example, Kathleen A. Brady, “Religious Organizations and Free Exercise: The Surprising Lessons of Smith,” Brigham Young University Law Review 5 (2004), 1633.
 Thomas v. Rev. Bd., 450 U.S. 707, 715-16 (1981).
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