In her book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, Kathleen Brady has done a masterful job of defining the unique nature of religious exercise and developing a strong legal presumption in favor of its accommodation. Pointing to accommodations given the founding-era Quakers who refused to swear an oath and to bear arms, Brady observes how government yielded even in the face of refusals to perform civic duties that were central to its existence. As her argument develops throughout the book, the burden on the government to justify the denial of exemptions or accommodations gets progressively heavier. She writes, “America's tradition of religious freedom is not about living one's life free of the religious commitments of others. It is about living alongside those with different beliefs and practices and accommodating them whenever we can” (269).

Despite the proposal's heavy weighting in favor of religious exercise, Brady hopes that it encourages compromise—by both government and religious claimants. The claimant's risk of losing in litigation, even under such a protective model, creates incentives to offer compromise. She notes that the Quaker example is the product of compromise by the Quakers: they would affirm but not swear; they would provide a payment or a substitute, or would give alternative service—but they would not directly bear arms. I am reminded of other examples: the prisoner who must wear prayer beads but offers to keep them under his shirt to allay fears of gang symbolism; the Sikh who must wear his ceremonial knife but offers to sew it into its sheath to allay fears that it might be used in a violent act; the Muslim prisoner who offers to keep his beard trimmed to a half-inch in recognition of prison contraband concerns.

But as I reflect on free exercise claims most prevalent today, it seems to me that they often give no room for compromise. One might say that is the nature of much of religious practice and particularly the nature of conscientious objection: demands of faith are uncompromising, so any religious claimant putting those demands into practice can be uncompromising, especially when it involves a command or prohibition in a holy book, or a theory of avoiding complicity in evil.

Uncompromising perfectionism is also a larger cultural phenomenon—fueled, paradoxically, by shrill and strident “rights talk” that empowers the autonomous individual and by the communitarian recognition that we are interconnected and therefore easily complicit in just about everything, from global mistreatment of workers to racism to environmental destruction. Polarization on the turbulent issues of American identity are commonplace. So, when religious people make claims for free exercise for their faith practices and conscience, they are part of the wider phenomenon of uncompromising perfection.

One category of exemption claims continues to grow, and to grow in urgency, as the cultural disestablishment of Christianity has moved forward and as traditional conceptions of sexuality and family life have been supplanted by unprecedented concepts. The last fifty years has seen the loss of basic, centuries-old Christian ethical positions and practices. With the specific rejection of traditional ethics—seen in the rise of contraception, abortion, sterilization, reproductive technologies, embryo experimentation, DNA manipulation, physician-assisted suicide, sex and gender-identity reassignment, gay adoption, and same-sex marriage—exemptions provide religious traditionalists the ability to live “untainted” by these changes.

Since Roe v. Wade, federal law has protected decisions of medical personnel to refuse to participate in abortions or sterilizations, without fear of any penalty. This seemed a straightforward necessity of conscience protection. But many additional questions of complicity have been raised: What about the receptionist making the appointment? An ambulance driver? And, of course, we see the advent of many new conscience claims, particularly among religiously conservative Protestants and Catholics. A landlord refuses to rent to a cohabiting couple. A pharmacist refuses to fill a prescription for birth control pills. A physician refuses fertility treatments to a lesbian. A pharmacist refuses to provide emergency contraception to a rape victim on the chance that a fertilized egg is present. A couple who rents out their large farm and facilities for weddings refuses the gay couple. A judge refuses to perform a same-sex wedding. A marriage counselor refuses to counsel a same-sex couple. A social worker refuses to place a child with a gay couple. A baker refuses to bake a wedding cake for a same-sex wedding. An employer refuses to provide its employees with insurance coverage for contraceptives.

A second category of exemption claims continues to grow, but it is not related to the cultural disestablishment of Christianity. It is related instead to the immigration of Muslims and conversion of nonimmigrants to Islam and the particular practices of the faith. Of course, we have seen (and accommodated) minority religious practices before: Jehovah's Witnesses who refused blood transfusions; Christian Scientists who refused medical treatment for their children; Orthodox Jews and Seventh-day Adventists who could not work on Saturday, their Sabbath; Native Americans who use drugs or eagle feathers in their ceremonies. Prison populations also present claims for minority practices, as they are fully dependent upon government to allow religious practice.

With a current Muslim population of about 3.5 million, conflicts over religious practices have increased. Litigation against government entities often involves the right to wear headscarves, veils, and beards. In addition, much of the conflict occurs in the workplace setting. Indeed, while Muslims represent about 1 percent of the US population, about 40 percent of the religion-based complaints filed with the Equal Employment Opportunity Commission in 2015 were related to Muslim practices. News articles and lawsuits seeking accommodations abound: The Costco cashier who refuses to touch pork or alcohol placed on his conveyor belt. The Somali cabbies at the airport who refuse to transport passengers carrying alcohol from the duty-free shop. The truck drivers who refuse to transport pork products or alcohol. Flight attendants who refuse to serve alcohol. Those who refuse porcine-derived vaccines. Those who ask for prayer breaks on a particular schedule. And in France, the male bus driver who refuses to take the wheel of a bus that has been driven by a woman.

Under Brady's proposal, the claimants described in both categories would be accommodated. Of course, Brady notes, accommodations that “entail substantial expense for a discrete segment of the community raise issues of religious equality,” not to mention concerns of religious favoritism (269). Yet most of the claims I have mentioned, whether against government, business, or employer, fall well within the scope of accommodation that Brady proposes. Exempting these religious claimants does not threaten core functions of the state, nor does it involve the deprivation of rights, as Brady defines them.

America is at the same time a secular and religiously pluralist society. Religious exemptions reduce tensions with this dominant culture, so that believers can live as purely as their faith demands. This is especially true for individuals who have chosen not to stay cloistered in their own enclaves but live and work among all sorts of people. Accommodating minority practices also promotes important civic goals of tolerance and diversity. But is the choice only between the uncompromising claims of religion and the state? In the midst of uncompromising positions on all sides, Brady remains hopeful that her proposal will produce compromise. She writes that government must consider alternatives, and must show that none of the options is workable: “Giving substantial weight to active, sustained, and good-faith efforts to work with believers to reach extrajudicial solutions will give government actors strong incentives to explore such possibilities” (255). Indeed, Brady further observes that “finding mutually acceptable compromises will require active involvement by claimants too. … If a sustained, good-faith effort on the part of government officials to come up with accommodations that meet the needs of both believers and the state counts as substantial evidence to support the government's claim that no feasible alternatives exist, believers will have strong incentives to consider and offer any possibilities that are acceptable to them” (255). Brady notes, it is in the claimant's interest to offer these possibilities and avoid litigation because courts can still try to water down even robust approaches to free exercise.

I applaud Brady's emphasis on the need for compromise, but I am less sanguine that it would result from a robust exemption scheme. Perhaps we will be set on a new course by the Supreme Court's recent action in the Zubik v. Burwell litigation. Realizing the inevitability of a 4–4 tie (and therefore no resolution) in the religious nonprofit challenge to the Health and Human Services accommodation, the Court asked the parties to explain precisely how contraceptive coverage can be made available to employees without implicating the religious organizations in immoral acts. After supplemental briefing, the Court was confident that such a path is feasible. In essence, the Court asked the government to loosen its coercive grip, but also asked the religious groups to drop their demand for a full exemption.

Pluralism is all about adjusting, and the very foundation of religious liberty that Brady's proposal is built on also envisions adjustments. The Quakers could not in conscience swear an oath; but they could affirm an oath. They could not bear arms; but they could provide alternative service. They did not demand complete autonomy from the legal or military enterprise. If adjustments are at the nation's foundation, then it becomes imperative that this notion of compromise—by both claimants and governments—be explored directly, rather than as a hoped-for, indirect consequence of a robust exemption regime. After all, as the Second Vatican Council reminded us, the right to religious freedom is always exercised “in human society.”Footnote ⁹