In a remarkably short time, the US Supreme Court has managed to reduce the law of religious liberty to a state of absolute chaos. With respect to both the free exercise and the establishment clauses of the First Amendment, no one can say with confidence whether a claim will prevail in court. Old doctrine has been swept away, and what has replaced it is almost unintelligible.

The court now says that the Establishment Clause must be interpreted, not under the tests that lower courts had relied on before 2022, but rather by “reference to historical practices and understandings.”Footnote ¹ It demands an “analysis focused on original meaning and history.”Footnote ² The law must “accord with history and faithfully reflect the understanding of the Founding Fathers.”Footnote ³ And that is it. That is all the court says on the matter. None of this gives any lower court guidance as to how to decide any case.

With respect to free exercise, Tandon v. Newsom Footnote ⁴ held that laws “trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”Footnote ⁵ The court explained that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.”Footnote ⁶ The court has gotten into the habit of mischaracterizing the government interest, thereby giving victory to the plaintiff. There is not much constraint on what can be deemed comparable.Footnote ⁷ The court has not ruled against a religious claimant on the merits since 2010Footnote ⁸ (not counting the very unusual case of Trump v. Hawaii (2018),Footnote ⁹ in which any such claim was overridden by the court’s customary extreme deference to presidential control over foreign affairs).

Religious groups have an absolute right to choose their own ministers, unencumbered by any of the usual protections of employment law.Footnote ¹⁰ This makes sense for core clergy: a court cannot tell whether they are competently performing their jobs without getting into contestable theological matters. But who is a minister? It now appears that anyone who “perform[s] vital religious duties”Footnote ¹¹ qualifies. Any employee can be given some religious duties, creating a colorable claim to exemption from employment law.Footnote ¹² A Jewish employee can discover that his job might be exempt from regulation because the court regards him as a Christian minister.Footnote ¹³

That does not mean that religious claimants will always win. One can make realist predictions that the court will not allow official prayer in public schools, and it will not protect human sacrifice. In the Kennedy case, the court said that outright coercion would violate the Establishment Clause. But this limitation was itself limited by a strange new rule of evidence: it demanded testimony of already accomplished coercion in open court—testimony likely to provoke reprisals against the witness in most actual cases - before it would allow a school to take prophylactic measures to avoid it.Footnote ¹⁴

This state of affairs invites new architectural planning for the same reason that such plans were appropriate in Berlin in 1945. Amid the rubble, one tends to yearn for new construction. Two recent books propose rebuilding. Both are liberal in spirit, aiming at an approach that makes room for religious diversity and protects religious minorities, proposing rules that are far more determinate and attractive than what is coming out of the Supreme Court. Both are learned, careful, and a pleasure to read.

In their book Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, Nathan Chapman and Michael McConnell survey, with impressive compression, the origins of the religion clauses and the judicial decisions interpreting them. They then offer a new approach. The clauses, they argue, should be seen as “mutually reinforcing”: the Free Exercise Clause “protects the right to practice religion according to conscience and conviction,” while the Establishment Clause “prevents the government from coercing or using governmental power to induce religious beliefs and practice” (3). The prohibition of establishments is not a “thumb on the scale for secularism in public matters,” but rather “a constitutional commitment for Americans to agree to disagree about matters of religion—to refrain from using the power of government to coerce or induce uniformity of belief, whether that belief is … secular or religious” (6).

Half of the book is historical, a quick look at the origins of the religion clauses of the Constitution. Chapman and McConnell are scrupulously accurate but, as with any short history, selective. Donald Drakeman has pointed out that one might reasonably read the same history to support a much narrower meaning for the Establishment Clause, as prohibiting little more than “a formal, statutorily created Church of America.”Footnote ¹⁵ Chapman and McConnell’s approach reflects the culture wars here and now, and so they focus on those concerns of the framers that are continuous with their own. They say that “starting with the original meaning of a constitutional provision always makes good sense” (5), but their book is not an exercise in originalism.Footnote ¹⁶

They favor religious exemptions from generally applicable laws, because government should not disincentivize religious practice. The court’s overruling of its mid-twentieth century decisions barring the funding of religious schools was appropriate, for the same reason: a no-aid rule creates financial pressure for parents to choose a secular over a religious education. The court was right to bar prayers in school, because they have a subtle coercive effect on the students. The court has also been right, in its recent decisions, to permit longstanding displays of religious symbols without extending this permission to new ones. Chapman and McConnell hope that this rule “will dry up most litigation” (172).

Thomas Berg’s Religious Liberty in a Polarized Age is even more frankly presentist: Berg aims to deploy the idea of religious liberty as a way to ameliorate the bitter divisions in contemporary US politics. The American left is hostile to conservative Christian views on sexual morality; the right is hostile to Islam. As Berg argues, “both sides have shown selective commitments to religious freedom, giving it little weight when they’re unsympathetic to the group asserting it” (15). A broad principle of religious liberty offers a way to calm the polarization, by allowing both sides “to live consistently with their deepest, most comprehensive beliefs and identity” (7).

McConnell and Berg are coauthors of one of the principal casebooks on religious liberty, and the arguments of the two books under review here largely overlap.Footnote ¹⁷ There is, however, a difference in emphasis: Chapman and McConnell want the government to keep its hands off religion as such, while Berg focuses primarily on the needs of individuals. Berg writes: “Religious beliefs, for persons who hold them strongly enough to risk challenging a law, are likely to be deep and comprehensive enough that being forced to violate them is a serious blow to one’s integrity” (117–18). Individual integrity, not religion, is what Berg hopes to protect. His discussion of the establishment clause focuses on government speech, and his primary concern is that “when government takes positions on disputed religious questions, even without coercing anyone, it violates principles of equal respect for religious views that are vital in a religiously divided society” (307). His aim is a conception of political identity in which no citizens are excluded.

Berg’s methodological individualism enables him to draw parallels between same-sex couples and the religious people who object to facilitating their weddings. Both groups regard some conduct as integral to their identity (97–99, 260–61). Both want to live out their identities in public (99–101, 261). Both have been the objects of hostility or indifference (101, 261–63). Both aim to form associations that demonstrably contribute to the common good, creating socially valuable duties and responsibilities (158–60, 263).

In these two books, Chapman and McConnell and Berg agree that the free exercise clause should be understood to entail presumptive religious exemptions from generally applicable laws. But Berg is more willing to say that harm to third parties should be a reason to deny exemptions. “If religious freedom becomes a trump on all other interests, it will inflame conflict rather than soothe it. The same will happen if we protect only religious freedom and not other important rights” (8). He proposes that nonprofit and even for-profit religious entities ought to be permitted to follow religious norms, even when these are discriminatory, only when the for-profit businesses are small and only “when ample alternative providers are available” (18).Footnote ¹⁸ He observes that in Burwell v. Hobby Lobby Stores,Footnote ¹⁹ in which religious employers objected to the Affordable Care Act’s mandate to provide contraceptive coverage to their employees, the accommodation the court crafted “did not harm female employees; they still received contraception coverage without co-pays” (218). Chapman and McConnell, on the other hand, approach the problem from a different baseline: “when the government enacts regulations for the secular benefit of some, but at the cost of burdening the ability of others to freely exercise their religion, it is permissible for the government to carve out a religious accommodation, even if the result is not to benefit as many third parties as would be benefited without the accommodation” (111).Footnote ²⁰ This formulation is overbroad, since all laws, including protections against violence, are for the secular benefit of some.

In their two books, Chapman and McConnell and Berg defend an interpretation of the free exercise clause as authorizing judicially crafted religious accommodations. They do not, however, tries very hard to defend such accommodations on originalist grounds. This is revealing because Justice Samuel Alito recently relied on McConnell’s scholarship to make an (unpersuasive) originalist case for such exemptions.Footnote ²¹ Berg briefly alludes to McConnell’s scholarship as well (83–84), but these two books follow a different strategy, showing the attractiveness of a regime that is hospitable to religious diversity. Such a regime would certainly include some religious accommodations.

This is important and admirable work. These proposals would be a considerable improvement over the fog with which the present court has covered the landscape.