The Distinctiveness of Religion in American Law is an important book; Kathleen Brady's arguments are challenging, engaging, and exasperating. Against what might be called a “rights-leveling equality,” Brady has formulated an argument for religious exemptions that is generally careful, thoughtful, and fair. Her literature review (chapters 1 and 2) is valuable by itself, giving a comprehensive, succinct, and accurate overview of the current “state of play” in exemption doctrine and free-exercise jurisprudence. More important, of course, are Brady's arguments for constitutionally required exemptions from religiously burdensome government acts, which she frames with pointed criticisms of the position, urged by me and others, that permissive exemptions that impose material burdens on others violate the Establishment Clause.

Arguments for accommodation of religion through mandatory free-exercise exemptions would require abandonment of Employment Division v. Smith, which held that the Free Exercise Clause does not require believers to be excused from complying with religiously neutral, generally applicable laws that burden their beliefs and practices (chapter 8). Disposing of Smith is accommodationism's Holy Grail, but it remains elusive. The Court has repeatedly affirmed Smith and shown little interest in reconsidering it. Its entrenchment in free exercise doctrine suggests the futility of more expansive mandatory exemption proposals like Brady's, however carefully conceived.

If the Court were interested in resurrecting a constitutional right to religious exemptions, Brady's formulation would have much to recommend it. Unlike many accommodationists, Brady acknowledges that the United States has long since overflowed the framers' libertarian assumptions about the role of government, and thus sensibly recognizes that exemptions cannot be required when they would deprive others of the positive-liberty entitlements of the contemporary social welfare state (242–43). In related fashion, she recognizes the necessity of affording government a wide ambit of action to protect the health, safety, and welfare of contemporary participants in that state, which might foreclose even permissive exemptions in some circumstances (238–41).

Even so, Brady ultimately does not come to grips with the problems generated by exemption regimes—problems that degraded the mandatory exemption right during the brief Sherbert-Yoder era and ultimately led to Smith. Categorical rules do not work in this area of law, just as they rarely work in others. No matter how carefully one calibrates a categorical rule, sooner or later (usually sooner) a situation arises in which application of the rule would work injustice.

A categorical rule in the permissive accommodation arena, for example, could require accommodation whenever government action has burdened a person's ability to practice his or her religion. Unless courts may adjudicate whether a burden meaningfully interferes with the exercise of religion—which accommodationists tend to deny—they are left with the unattractive choice of either ceding the question of accommodation entirely to exemption claimants, or examining whether exemption claimants really believe what they say they do, or are lying about it.Footnote ¹¹ Exemption regimes, such as the Religious Freedom Restoration Act, or RFRA, usually include a narrow escape hatch that allows government to burden even sincere religious practice, if it proves the burden is tailored to promote an exceptionally important government interest, but this, too, leaves courts with the difficult task of balancing genuine burdens on religion against interference with legitimate government goals.

In setting forth an affirmative argument for exemptions (chapter 9), Brady attacks my position that the Establishment Clause precludes permissive religious accommodations that impose “material” burdens on “third parties” who do not believe or practice the accommodated religion (264–70, 265n20–24, 268n45, 269n49).Footnote ¹² In Brady's view, the relevant precedents do not support an Establishment Clause liberty interest to live free of material burdens imposed by permissive accommodation of religious practice by others (265–67); she also maintains that the “materiality” standard eviscerates the permissive accommodation power recognized even by Smith (268–69). Arguments to the contrary, she contends, express an insensitivity to religious belief blind to the only legitimate anti-establishment value at stake in permissive accommodation disputes—political equality for minority religions (269–73).

Brady reads permissive accommodation cases like Cutter v. Wilkinson and Burwell v. Hobby Lobby quite narrowly, as discrete and unconnected holdings that said nothing important about whether and when third-party burdens are sufficiently weighty to trigger anti-establishment concerns (265). But saying that these cases left this trigger-weight “largely undefined” dramatically understates the substance each applied to this question. Brady's characterization of Thornton v. Caldor and United States v. Lee as compelled religious participation or affirmation cases is also questionable. While Caldor introduces its analysis with the observation that government may not “compel people to act in the name of any religion,”Footnote ¹³ this rhetorical flourish is never connected to the rest of the opinion. Likewise, the exemption sought in Lee would not have required employees to decline social security or other social welfare benefits, or otherwise to practice or endorse the employer's religious beliefs about the evils of accepting such benefits—it would simply have reduced employee benefits. Nor did either of these cases have anything to do with the marginalization of religious minorities. The Sabbath-accommodation statute in Caldor was religiously neutral; by its terms it accommodated any believer, minority or otherwise, regardless of the day of the week he or she wished to observe. Lee, too, was a religiously neutral holding, which even suggested that courts should avoid exemptions that would reduce benefits for those who do not share the accommodated religion.

Readers themselves must judge whether these decisions are better read as prohibiting forced religious participation or endorsement, as Brady maintains, or the broader liberty of “the freedom to live one's life free of the religious commitments of others,” as Rebecca Van Tassell and I argue.Footnote ¹⁴ Brady does not like the “materiality” standard, but even she acknowledges that at some point third-party burdens become so focused and onerous that the Establishment Clause precludes their imposition on those who do not belong to the accommodated religion (238–39, 241). The question is where and how to draw the line between permissible and impermissible accommodation.

Brady protests that the materiality standard “would significantly curtail” permissive accommodation, leaving religious conscience unprotected whenever it “impacts the interests of nonadherents in a material way” (268), regardless of the form these interests take or the impact they suffer from religious accommodation. Of course, Brady's assertion is a truism: A “materiality” standard precludes by definition exemptions that impose “material” burdens on others. I take her criticism to be that materiality intrudes too deeply on government power to enact permissive religious accommodations. This is not a legal argument, but an expression of opinion about how much protection the Constitution permits government to grant religion.

Also evident in Brady's argument is the unfortunate polarization that now plagues political rhetoric and academic scholarship on religious liberty, manifest here as the demonization of those who hold to conceptions of religious liberty that do not precisely coincide with one's own. This not only clogs up channels of dialogue, but often obscures areas of agreement and near-agreement that point to potential compromise.Footnote ¹⁵ As my own writing and scholarship suggests, I actually agree with many of Brady's arguments and conclusions, including some of the points she makes about permissive accommodation. I have already noted my general agreement that widely distributed burdens on third parties should—I say “rarely,” she says “never”—trigger Establishment Clause restrictions on permissive accommodations. I also generally agree with the proposal she articulates at the end of chapter 9: “When the government substantially burdens religious practice, it should be able to show that the costs of accommodation are more than minimal” (277), which simply restates the Court's de minimis standard for religious accommodation under Title IX. Setting aside the curiosity of a discussion about permissive accommodations that ends with making them constitutionally mandatory, Brady's position is, again, almost exactly what I believe as a matter of political morality: we should accommodate religion when we can do so without excessive infringements on other important rights and interests, including those of third parties who believe and practice differently. That certainly means that we should accommodate religion when the costs to such third parties are “minimal.”

The recent case of Holt v. Hobbs is an excellent example. The refusal of prison authorities to accommodate the prisoner claimant's sincere religiously motivated desire to grow a one-half-inch beard was a needless and gratuitous intrusion on religious liberty, because the accommodation he sought from the prison's no-beard rule was virtually costless to authorities, other prisoners, and anyone else.

I likewise share Brady's fear of intangible “dignity” burdens as limits on accommodation (247). I am far from working out a detailed and nuanced position, but two aspects of dignitary harm give me pause. First, harms to dignity are serious and real, but usually parasitic on tangible deprivations, as Brady points out (247). Perhaps, then, the focus in at least some cases might better be trained on the tangible deprivation, not the intangible dignitary harm, real though it is. And second, if dignitary harm is generated by religious accommodation and is by itself sufficient to block such accommodations, legislative compromises between antidiscrimination and religious freedom norms, such as those effected in Utah between the interests of the lesbian, gay, bisexual, and transgender, or LGBT, community and conservative religious interests,Footnote ¹⁶ become doctrinally impossible. The willingness of government to accommodate religion in such situations would undermine the dignity of those protected by antidiscrimination norms, even when they suffer no tangible harm.Footnote ¹⁷ While I again have disagreements with the particulars of application, I agree with Brady that at some point a pluralistic legal order simply cannot fully protect everyone's individual dignity. Indeed, the attempt to do so will inevitably generate collateral costs, including both dignitary and tangible harms to believers. In any event, the extent to which the third-party burden doctrine should preclude permissive exemptions that impose solely dignitary harm on others remains an open question that is not foreclosed by the materiality standard to which Van Tassell and I remain committed.

I and others have engaged in good faith struggles over where and how to draw the line between permissible and impermissible accommodations in a way that vindicates important interests on both sides. Andrew Koppelman's efforts to craft compromises in the “wedding-vendor” cases are well known to church/state scholars.Footnote ¹⁸ In researching a recent project,Footnote ¹⁹ Van Tassell and I seriously explored alternatives to “materiality,” testing whether there might exist a more stable and specific religion-protective alternative that still meaningfully protected third parties from the burdens generated by religiously accommodation. We returned to materiality as, all things considered, the best guide to drawing this line despite its imperfections.

Brady cannot be charged with knowledge of Van Tassell's and my unpublished authorial struggles. But neither does our published work justify the conclusion that we are hostile to religion. That we draw the line between permissible and impermissible accommodation in a different place and by different means than Brady does, preferring somewhat less protection of religious believers and somewhat more of third parties than she would, doesn't even make us doctrinal opponents. But our agreements with Brady are eclipsed by her strident criticisms that we failed to draw the line in the precise manner and place that she would.

No ideology or theology owns “religious liberty,” and no person or institution can claim the exclusive power to authoritatively police its meaning, though one would not know this from much contemporary religious-liberty rhetoric. One of the points I have been keen to make in my own work—one that Brady seems to criticize (see 269)—is that “liberty,” even “religious” liberty, appears on both sides of permissive accommodation conflicts.Footnote ²⁰ The Establishment Clause protects religious liberty as much as the Free Exercise Clause, and many opponents of aggressively expanded claims for permissive exemptions are, like me, as religiously devout as those who support those claims. It should not be hard to imagine a low- or middle-income parent whose religiously informed understanding of duties owed to existing family precludes additional children—perhaps only for a season, but perhaps forever. If a RFRA exemption from the contraception mandate deprives her of the means to live out that understanding, or forces her to do so at a (dare I say) “material” cost, because of religious accommodations created for her employer who believes differently, that parent has been deprived of religious liberty every bit as much as her employer would be without the exemption. Indeed, the exemption amounts to a government preference of her employer's beliefs to hers.

The increasingly polarized discourse on religious liberty would be immeasurably improved if accommodationists like Professor Brady were to engage the constitutional reality that freedom from religion, from the costs of practicing someone else's religion, is as essential to “religious liberty” as freedom for religion. The balance is complicated and hard, but the failure to strike it in one particular place rather than another is hardly evidence that one does not value and even cherish religious liberty.