I am greatly honored by the articles published here and by the festschrift of which they are a part. I have offered my thanks and a bit of biography in my response to the remedies articles from the same festschrift. Footnote 1 I do not repeat that here, but my thanks certainly extend to those who wrote about my work on religious liberty.
I do feel the need to repeat and elaborate on one point: as gratifying as they are, these articles seem to me exaggerated. As Huck Finn said of Mark Twain, they told the truth, mainly, but there are some stretchers.Footnote 2 Over the years, as I published, testified, and litigated in defense of religious liberty, my influence never seemed as great as some of these articles make it out to have been. We won some and lost some, but it was trench warfare, and the battles always dragged on.
There were plenty of opponents over the years. Hardly anyone admits to opposing religious liberty, but many people and many organized interest groups have extremely narrow understandings of what religious liberty includes. They are effectively opposed to religious liberty in practice. Or they support religious liberty only if it does not conflict with any other policy or interest that they care about. But when such conflicts inevitably emerge, the other policy or interest always wins. Another large group of people has an expansive understanding of religious liberty for themselves and their co-religionists but appears to care not at all about, and sometimes actively opposes, religious liberty for adherents of other faiths or for nonbelievers.
For me, this was always a two-front war. The most important thing about my work on religious liberty—the thing I am most proud of—is that I have always defended the rights of both sides in the culture wars. I care about the Free Exercise Clause of the U.S. constitution, and I care about its Establishment Clause. The two clauses do not conflict: they work together to protect religious liberty. Thomas Jefferson never said that the Establishment Clause creates a wall of separation between church and state. Most folks have forgotten, but what he very clearly said is this: the two clauses together create a wall of separation.Footnote 3 And he was right about that. Both clauses keep government out of religious matters. Both clauses protect religious liberty for the American people.
I care about people of all faiths and of none—from the devout through the indifferent to the actively hostile, and for all the many variations that do not fit neatly on that simplified continuum. I am not for religion or against religion; I am for the right of every individual, and of the many voluntary associations that people form for religious purposes, to adhere to their own religious commitments and to make their own religious choices.
My commitment to religious liberty is not about religion; it is an application of my commitment to civil liberties more generally. I first publicly endorsed constitutional rights to protect gays and lesbians, and to protect abortion, in 1981.Footnote 4 I have actively supported same-sex marriage,Footnote 5 I have always been pro-choice, and over the years, I have become much more confident about constitutional protection for these rights. But I have also supported the right of conscientious objectors not to assist with these weddings or with abortions.Footnote 6 Religious liberty and sexual and reproductive liberty have much in common: these liberties protect intensely personal matters that are essential to personal identity.Footnote 7
This set of positions meant that my allies on free-exercise issues often opposed me on Establishment Clause issues and on secular civil liberties issues, and my allies on Establishment Clause issues often opposed me on free-exercise issues. Both sides seemed to tolerate my opposing them on the other clause; I managed to get along with organizations and litigators on both sides of the culture wars.
As Michael McConnell notes, I am not myself religious.Footnote 8 None of the supernatural claims of the world’s religions seem to me even remotely plausible, verifiable, testable, or falsifiable.Footnote 9 I have learned to respect most believers, but I profoundly disagree with many contemporary Americans who have actively politicized their religion. When these people act politically, I vote against them. I contribute to their opponents. But I defend their right to live their own lives by their own deepest values.
The contributors here have mostly been so uncritical that they have given me little to respond to. What I can offer is a brief survey of my work from my own perspective, noting connections to the other articles where possible.
Substantive Neutrality
I have organized much of my work on religious liberty around the idea of substantive neutrality.Footnote 10 Substantive neutrality attempts to integrate the whole cluster of Religion Clause values—neutrality, liberty, voluntarism, and separation. And it addresses all three of the enduring sets of constitutional issues about religion: religious exemptions from regulation, government money for religious institutions, and religious speech with government sponsorship.
Substantive neutrality is measured by the government’s effect on religious incentives. It is government incentives that should be neutral; government should neither encourage nor discourage religious belief or practice. Minimizing government influence on religion maximizes liberty with respect to religion. With government as far out of the way as possible, any decision to participate in religion is voluntary, and a decision not to participate is equally voluntary and equally protected. And religion is, as much as possible, separated from government coercion or government influence.
I contrasted substantive neutrality with formal neutrality, which requires religiously neutral categories. Neutral categories—treating a religious activity just like its nearest secular analog—sometimes produces neutral incentives. But sometimes it does not. Because government encourages and discourages all sorts of things, neutral incentives sometimes require that religion be treated differently from secular analogs.
Regulatory Exemptions
A right to believe a religion with no right to practice that religion is a very hollow right. In many religions, practice is more important than belief.Footnote 11 So regulatory exemptions for the exercise of religion are essential to religious liberty.Footnote 12 We must protect religiously motivated actions and religiously motivated refusals to act.
Neutral incentives require religious exemptions in a wide range of cases. Government penalties on a religious practice—whether jail, fines, or loss of benefits—powerfully discourage that practice. But exemptions rarely encourage others to join the faith or adopt a new religious practice. Many religious practices are burdensome to their practitioners; many are meaningless apart from the faith that gives them meaning.
When a religious practice aligns too closely with secular self-interest, incentives change.Footnote 13 In these cases, exemption does encourage people to join the religion, or falsely claim to have joined the religion. This is why exemptions from the military draft have always come with a requirement of alternative service or payment of a large fee.Footnote 14 This is the best explanation of why no one ever wins an exemption from paying taxes under a general guarantee of religious liberty (such as the constitution or the Religious Freedom Restoration Act). The U.S. Supreme Court has refused claims to tax exemption under such provisions,Footnote 15 but it has upheld legislatively granted tax exemptions that include religious organizations in broader and reasonably neutral categories.Footnote 16 The difference between legislative tax exemptions and those derived from claims of conscience is that the legislature can define relatively objective boundaries to the exemption, boundaries that do not depend on the claimant’s possibly self-serving and hard-to-verify testimony. Under general guarantees of religious liberty, the financial prospect of tax exemption would create powerful incentives to make up phony claims of conscience or to join religions that really do have conscientious objections to some taxes. The legislative exemptions generally have no such effects.
Exemptions can also be denied in service of compelling government interests. There is no right to inflict significant harm on non-consenting others in the exercise of one’s religion.Footnote 17 This is an overriding exception, external to any analysis of what is needed for religious liberty. As Tom Berg notes, substantive neutrality cannot tell us when religious liberty must yield to competing interests.Footnote 18
A major article on the compelling interest standard is one of my unachieved ambitions. The constitution protects religious liberty as a fundamental right, and this protection is stated in absolute terms. Of course we cannot protect it absolutely. Most obviously, we will not protect human sacrifice.Footnote 19 But neither can we legitimately ignore the absolutism of the text. The impossibility of absolute protection does not mean that we can substitute no protection, or rational-basis protection. The absolute text demands a very high standard of protection, even though it necessarily must be less than absolute.Footnote 20
A brief aside at this point: As Mark Storslee emphasizes, my approach to constitutional interpretation starts with the constitutional textFootnote 21—the actual ratified text, not any alleged original intent or public meaning.Footnote 22 I have also written repeatedly about the history of the Religion Clauses,Footnote 23 and it is important to read the text in light of the problem or problems the text was designed to solve. But that does not make me an originalist. In addition to all its other problems,Footnote 24 originalism taken seriously holds that we are forbidden to learn from experience in implementing and enforcing the constitution. The history of Protestant-Catholic conflict and the persecution of the Latter-day Saints in the nineteenth century, and of the Jehovah’s Witnesses in the twentieth,Footnote 25 are as important to interpreting the Religion Clauses as anything that happened in the eighteenth century. These later episodes further illustrate the problem to be solved. They show us how and where we went wrong, falling far short of the principles stated in the constitutional text.
So I believe that the compelling interest exception is implied by necessity and that it should be confined to cases where there is a clear necessity to override a fundamental human right. Any more specific standard is likely to be both over and under inclusive. With that caveat, I would offer something like significant and tangible harm to others.
But ever since John Stuart Mill published the harm principle,Footnote 26 people on all sides have learned to argue that anything they don’t like somehow harms them.Footnote 27 It is not a compelling interest that your religious practice inconveniences me or that it offends me. We have long understood that offensive speech is and must be constitutionally protected.Footnote 28 Offensive religions and their offensive practices must also be protected.
The Supreme Court has never explained the basis for the compelling interest standard. It emerged in something like its modern form in the 1940s and 1950s, with little explanation.Footnote 29 Its most immediate predecessor was the now-defunct clear-and-present-danger standard in free speech cases.Footnote 30 Similar ideas, although not any of the modern formulations, can be found in cases and arguments for religious liberty back to the U.S. founding era.Footnote 31
A recurring issue in recent years has been whether preventing dignitary harm to same-sex couples is a compelling interest that justifies requiring small business owners to provide goods and services for weddings or other events that the business owner understands as religiously significant and religiously prohibited.Footnote 32 For multiple reasons, I think that this interest is not compelling. The dignitary harm is real; I have never denied that. But the essence of the harm is that the same-sex couple is insulted and offended by the wedding vendor’s moral disapproval of their conduct and his refusal to support it or assist with celebrating it. The interest in avoiding insult and offense is no more compelling in the free exercise context than in the free speech context. It is true that the free exercise context involves conduct and not just speech. But if the same goods or services are available elsewhere in the community, as they nearly always are, the harm flows entirely from the communicative impact of the conduct. These cases are at bottom about an offensive message, explicit or implicit.Footnote 33
But there is more. There is dignitary harm on both sides in these cases. The wedding vendor is asked to violate his conscience and disrupt his relationship with God. And both the dignitary and material harm to the wedding vendor are much greater than the harm to the same-sex couple. This is not just a matter of choosing your preferred right; there is an objective way in which the balance of hardships tilts heavily in favor of the wedding vendors. Couples who obtain their cake or their wedding photos from another vendor still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.
Wedding vendors who are denied an exemption do not get to live their own lives by their own values. They must repeatedly violate their conscience, providing wedding services for every same-sex couple who asks, or they must abandon their occupation to avoid those demands. The harm of regulation on the religious side is permanent loss of religious identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.Footnote 34
I have argued for religious exemptions far more often than not, in law reviews, courts, and legislative hearings. But I have also opposed exemptions in important contexts. I oppose vaccination exemptions because the government has a compelling interest in protecting everyone who comes in contact with the unvaccinated and because the requests are mostly insincere, based not on religion, but on secular interests in bad science or political posturing.Footnote 35 Medical exemptions to vaccination requirements do not make the requirement nonneutral or less than generally applicable, because the medical exemption does not undermine the state’s interest. Medical exemptions serve the state’s interest in minimizing the total incidence of serious illness and death from the disease, including illness and death from attempts to combat the disease—illness and death that would not have happened but for the disease.Footnote 36 Vaccination is an issue on which Larry Sager and I largely agree.Footnote 37
Before the COVID-19 pandemic, no one had ever won a vaccination exemption under a generally applicable guarantee of religious liberty.Footnote 38 The government’s compelling interest in vaccination and the phoniness of most vaccination claims were never clearer than at the height of the pandemic. The unvaccinated overwhelmed hospitals, spread infection, and disproportionately died, imposing enormous costs on society and on those around them. In one study period, mostly covering 2022, the COVID-19 death rate among the unvaccinated was fourteen times the same rate among the vaccinated.Footnote 39 Religious objections to vaccination were shown to be mostly insincere even before they exploded during COVID-19.Footnote 40 And it is impossible to believe that millions of people suddenly converted during the pandemic to religions that teach opposition to vaccination. For all practical purposes, there are no such religions. Not even Christian Science teaches resistance to mandatory vaccinations.Footnote 41 The objections were overwhelmingly political, not religious.
Compelling government interests can sometimes burden even the most important exercises of religion. I supported well-conceived and well-drafted restrictions on worship services at the height of COVID-19.Footnote 42 But many or most of those restrictions were drafted quickly and clumsily; they discriminated in various ways. None were upheld after Justice Barrett joined the court.Footnote 43
As already noted, I would exempt wedding vendors from supplying goods and services for same-sex weddings.Footnote 44 But not if they have a local monopoly, so that no similar goods and services are available in the area.Footnote 45 And not if their business is so large that the religiously objecting owner is not personally involved in providing the goods or services.Footnote 46
Few claims of conscience are more profound than objection to abortion. I would exempt objectors from performing them, assisting with them, or paying for them. But not in medical emergencies, and once again, not if a medical provider has a local monopoly, as Catholic hospitals often do.Footnote 47 If these Catholic hospitals were required to perform abortions, they wouldn’t do it, but they would give up their monopoly over hospital-level OB-GYN care.
So I am accurately known as a strong proponent of religious exemptions. It is less widely known that I have never been an absolutist. But I am not.
Government Funding for Religious Institutions
The second great and enduring set of religious liberty issues concerns government funding of religious institutions. The funding issues in the founders’ time were about using earmarked tax money for the salaries of clergy and the construction or maintenance of churches.Footnote 48 These payments were neither formally nor substantively neutral. Government gave special subsidies to clergy and churches as such, in an era when government subsidized very little by today’s standards. These issues were gradually resolved with the rule that government may not make such payments. That resolution has held: government does not pay for the religious functions of churches. That rule is so settled and so widely accepted that it generally passes without notice. No one today argues that clergy or churches can be singled out for special subsidies.
Today’s funding issues are very different. Today’s issues are about religious organizations that provide some secular service such as education, medical care, or aid to the poor. They often provide these services in a religious context, but the core services are the same as those provided by a wholly secular organization. And government often chooses to subsidize provision of these services by the private sector. Now the question is not whether government can fund the religious functions of the church, but whether it can, or must, fund these secular services when delivered by religious organizations.
Funding incentives play out very differently from regulatory incentives. Most religious exemptions from regulation are valuable only to those actively engaged in the exempted religious practice. No one else needs or wants that exemption. But cash has the same value to everybody. So funding the secular but not the religious, or vice versa, creates powerful incentives to add or eliminate just enough religious content to qualify for funding. If government funds services in the private sector at all, the substantively neutral way to do it is to fund all providers, religious and secular, on neutral terms.Footnote 49
If government funds only secular service providers, and if a religious provider succumbs to the resulting incentives, its religious practices have been changed by government coercion. If it refuses to change its religious practices and gives up the government money, it is penalized for its religious practices. Neither outcome is consistent with religious liberty.
For much of U.S. history, government funded and collaborated with religious hospitals, religious social service agencies, and religious colleges and universities with surprisingly little controversy.Footnote 50 The large and enduring controversy, now entering its third century without any settled resolution, is with respect to K-12 schools. The Protestant majority in the nineteenth century taught a generic Protestantism in the public schools and refused public money for private religious schools, most of which were Catholic.Footnote 51 The majority assumed, without much evidence of serious reflection, that funding a religious school is no different from funding the church.Footnote 52
But the differences are obvious and vast. Private schools, whether religious or secular, satisfy the compulsory education requirements. They teach all of the required secular curriculum and all or much of the elective secular curriculum. Far more of their time and budget is devoted to teaching secular courses than to teaching religion. The question is whether, and under what circumstances, government may or must fund secular instruction in religious schools.
I continue to assume that government has no obligation to fund private education at all. That assumption is problematic, and it is beginning to be contested.Footnote 53 The state says to parents that it will spend thousands of dollars a year to educate their children—if and only if they send their children to a public school that is necessarily secular and so surrender their constitutional right to send those children to a religious school instead.Footnote 54 But the public-private distinction is not a secular-religious distinction, and I still do not believe that government has a constitutional obligation to privatize its services. With the current Supreme Court majority, that proposition is no longer the sure thing that it appeared to be for most of my career.
Subsidizing religious and secular private schools alike is both formally and substantively neutral. It is formally neutral, because it creates no religious categories. It treats secular and religious private schools in the same way without distinction. And it is substantively neutral because it has no effect on religious incentives. Schools get the same subsidy without regard to what they teach about religion, and they cannot lose their subsidy or increase their subsidy by changing what they teach about religion. Parents who choose a private school get the same subsidy whether they choose a religious school or a secular school.
The famous Lemon test was at its core a requirement of religious neutrality. And while the court was not clear, I believe it was a requirement of substantive neutrality: a law’s “principal or primary effect must be one that neither advances nor inhibits religion.”Footnote 55 Advancing and inhibiting are not the language of categories; they are the language of effects on behavior. Advancing or inhibiting religious behavior—supporting and facilitating or obstructing and burdening that behavior—changes the prospects and degree of success and so changes the incentives to engage in that behavior.
But of course, the Lemon test as initially applied was not neutral at all. By considering only whether government aid might advance religion, without considering whether withholding aid might inhibit religion to a comparable or even greater degree, the court disaggregated its inquiry into neutrality.Footnote 56 By disaggregating neutrality, and by creating Lemon’s famous Catch-22, in which allowing aid to be diverted to religious uses violated the advancement prong of the test but monitoring to prevent such diversion violated the entanglement prong,Footnote 57 the court put religious schools in a unique category that was ineligible for most forms of government aid.
These stringent rules lasted only from 1971 to 1985. The court had upheld aid programs in its earlier decisions, in 1947 and 1968.Footnote 58 It began dismantling the new rules in 1986,Footnote 59 and it had largely completed the task by 2002, when it upheld Ohio’s voucher plan for the Cleveland schools.Footnote 60 And even from 1971 to 1985, the court allowed some forms of aid, because swing Justices were reluctant to overrule precedents or to entirely abandon neutrality.Footnote 61
Today the court’s position is the one I stated above: if a state subsidizes private education, it must subsidize secular and religious schools without distinction.Footnote 62 The next big question is whether a state can evade these rules by putting poison-pill strings on aid. Do religious institutions that accept government funds forfeit their right, guaranteed by Title VII, to hire and fire on the basis of religion?Footnote 63 Can a state subsidize only those schools that support same-sex marriage or hire same-sex spouses? As Maine litigated whether it was required to make tuition grants available to religious schools on equal terms, it amended its civil rights laws to prohibit discrimination on the basis of religion, sexual orientation, or gender identity at any religious school that accepts public funds.Footnote 64 Litigation over the validity of that law is currently pending in the First Circuit.Footnote 65
Such rules say to religious schools, and especially to theologically conservative religious schools, that they must either forfeit a substantial part of their right to exercise their religion or else forfeit their right to government funds on equal terms. This is an unconstitutional condition, and the state should be able to enforce such demands only if necessary to serve a compelling government interest.Footnote 66 The unconstitutional conditions doctrine is fraught with conceptual confusion and inconsistent decisions,Footnote 67 but the essential point is sound: the modern state cannot be allowed to use its money and its subsidy programs to buy up constitutional rights. It cannot offer government money only to those who agree to surrender one of their constitutional rights.
The first fully modern free exercise case was Sherbert v. Verner,Footnote 68 a case about precisely the choice between forfeiting free exercise or forfeiting government funds. The court held that imposing such a choice burdened the free exercise of religion,Footnote 69 and nothing in Employment Division v. Smith Footnote 70 questioned that part of Sherbert. A state can regulate private schools, but it cannot regulate their viewpoints or their religious practices without compelling reasons. And under much older law, it cannot regulate their “intimate and essential details” or deny “reasonable choice and discretion in respect of teachers, curriculum, and text-books.”Footnote 71
The Supreme Court will take another look at this issue in St. Mary Catholic Parish v. Roy. Footnote 72 Colorado funds pre-school programs but refuses to fund Catholic pre-schools, because Catholic schools in Colorado admit children only if their families support Catholic teaching on marriage and gender. This results in discrimination against LGBTQ families, which Colorado prohibits. The Catholic pre-schools lost in the court of appeals, but they have reason for optimism in the Supreme Court.
Another question remains in the background so far, little explored in the cases, but hugely important. If the state is to distribute public funds to private service providers, including religious providers, what criteria can it permissibly use to select the providers that will receive the funds?Footnote 73 The temptation to religious discrimination is obvious; money for unfamiliar or controversial religions will generate much more political opposition than money for large and mainstream religions.
If the government gives each beneficiary of the funded services a voucher, or if it sends the money on a per capita basis to whatever provider each beneficiary chooses, the problem is solved. The state does not choose providers at all. But government often gives the money directly to service providers. And most social services are underfunded; government often cannot afford to create an entitlement, fund all the providers, or fund all the beneficiaries. And it may not trust some beneficiaries to choose providers. Consider for example abused or neglected children, victims of mental illness, or those struggling with drug addiction.
The next-best solution is to distribute the money to providers on the basis of objective and nondiscretionary criteria. Such criteria make it difficult for those administering the program to discriminate and make it much easier for reviewing courts to identify any discrimination if it happens. But the evaluation of social service programs often does not lend itself to such criteria. Evaluation of such programs may require qualitative judgments that cannot be reduced to objective criteria. Or legislators may be unable to draft and agree on any but the vaguest criteria. Now the potential for discrimination is obvious. There were credible allegations of such discrimination in the George W. Bush administration.Footnote 74 It seems unlikely that that administration was the only such culprit.
There is no easy solution to this problem. A rule that religious providers cannot participate if any of the criteria for awarding money is discretionary would effectively overrule the cases prohibiting discrimination against religious providers. States could get out from under the rule by just writing a subjective criterion or two. A rule prohibiting any subjective judgments would likely be unadministrable and would often prevent consideration of some of the most important elements of program performance. There is probably no alternative to allowing subjective criteria with the potential for judicial review of claims of discrimination. Courts do that in other contexts, most notably employment discrimination. It doesn’t work well, but it can at least control the worst abuses.
Funding secular providers and not religious providers, or vice versa, is open and obvious discrimination. The substantively neutral course is equal funding, or equal access to funding, for religious and secular providers and for religious providers of all faiths. But this broad principle is not self-executing, and there is substantial risk of more subtle, less open discrimination in implementing a regime of equal funding.
Religious Speech with Government Sponsorship
Substantive neutrality would let government speak about religion, as when a public university offers a religious studies major. But it does not allow government to take a position on any religious question. So I would allow no government-led prayers or religious exercises, and no government-sponsored religious displays, whether Nativity scenes or crosses or menorahs or the Ten Commandments.Footnote 75 I would allow no government endorsements of religious or anti-religious views.Footnote 76 The Supreme Court’s failure to fully enforce the endorsement test over the years was unfortunate, and its formal abandonment of the test is a serious loss for religious liberty.Footnote 77 The endorsement test appeared chaotic and unworkable only because the courts never took it literally and so often failed to enforce it. The courts could have sensibly recognized a de minimis exception, but they did much more than that: they declared obvious endorsements to be non-endorsements by imputing secular meanings to core religious symbols and sacred texts.Footnote 78
In his essay for this festschrift, Chris Lund questions whether substantive neutrality can explain my opposition to endorsements.Footnote 79 In her article, Jessie Hill likes the substantive-neutrality explanation; she endorses it with some enthusiasm.Footnote 80 Lund says that a mere endorsement doesn’t create much of an incentive. Fair enough. But it’s a nudge—a government statement about what is true and valuable and worthy of public commemoration. It models a particular form of religious faith or observance—the government’s form.Footnote 81 It’s a gentle encouragement to adopt the government-endorsed belief. When I first introduced substantive neutrality, I said that “[g]overnment should not interfere with our beliefs about religion either by coercion or by persuasion.”Footnote 82
Some of the other Religion Clause values are also doing some of the analytic work here: separation and voluntarism, most obviously, but also formal neutrality acting as a kind of tie breaker when incentive effects are small and debatable. Government endorses and opposes a great many things all the time. Government endorses nutrition and health care; it opposes smoking and alcohol abuse. It endorses patriotism and war efforts; at the federal level, it endorsed the civil rights movement. And so on. It is impossible for government to be formally neutral by endorsing or opposing religion only to the extent that it endorses or opposes these other things. All of these other topics and positions are potential analogs; none of them is the right analog.
Government’s taking no position on religion is as close to neutral as we can come. Encouraging people to become more religious, or to adopt a particular religious belief, cannot be described as neutral. Encouraging people to abandon religion cannot be described as neutral. Silence, or neutral and detached description, is as close to neutral as we can get.
Government religious exercises are most dangerous when they are added to a government function that people of all faiths and of none attend for secular reasons. Government-sponsored prayer in public schools or at city council meetings forces students and citizens to sit through someone else’s prayer service. To make that politically tolerable, the prayer is generally kept very short, and in tolerant jurisdictions, very bland. So the majority faith doesn’t get what it really wants, but religious minorities, both nonbelievers and believers in other faiths, are still trapped.
Prayer must necessarily be in a particular form; there is no neutral way to pray. To pray in Jesus’s name is heresy or infidelity to non-Christians. Not to do so is theologically incomplete to many Christians. For nonbelievers, to pray at all is to pretend to talk to an imaginary entity. Once government gets in the prayer business, there is no good answer to such conundrums. There simply should be no prayers at government events. Keeping government entirely out of prayer and religious observance protects the majority’s faith from distortion by government actors motivated more by politics than religion. And it protects everyone, majority and minority alike, from effectively mandatory attendance at brief worship services.
The harm of government endorsement is most attenuated with passive religious displays. No one is trapped by a government cross or Nativity scene in anything like the way they are trapped by prayer at government events. Observers are simply reminded that the government is taking a position. The government believes that this religion—the one endorsed by the display—is true, and therefore, that what dissenters believe about religion is necessarily false. This is what Justice O’Connor described as telling “nonadherents that they are outsiders, not full members of the political community.”Footnote 83
But she did not see that a Nativity scene sends that message in the same way as a more full-throated and explicit preaching of Christianity. Christianity is founded on two miracles: the incarnation and the resurrection. And there is no way to understand a Nativity scene except as depicting the first of these miracles.Footnote 84
We teach about religion in higher education; we rarely teach about religion in K-12. That is a serious loss. Think about the many issues on which religion divides our society. Think about how religious divisions abroad create conflict and draw the nation into wars. Think about how often literature and historical texts and public speakers draw on religious references. We would all be better off if students understood more of these matters, and for that, they need to learn more about the world’s major religions.
The problem is that neither side in the culture wars trusts anyone to teach religion neutrally. The political forces who most want religion in the public school curriculum do not want a neutral study of all major religions; they want their own religion, and they want it taught as true. Instruction that carefully avoids taking a position on whether Christianity is true is not at all what they want. The secular side fears that if religious instruction is allowed in public schools at all, it will soon be captured by conservative Christians who will then get what they really want. School boards fear that they will be attacked by one or both sides no matter how they teach it. So there is no constituency for academic religious studies in K-12. It would not be unconstitutional, but it is not politically feasible.
Jessie Hill understands my position on government speech to be “more separationist” than my position on other issues.Footnote 85 This position is indeed separationist, but in my view, so are my other positions. “Separation of church and state” has been used in so many inconsistent ways that it no longer communicates.Footnote 86 But regulatory exemptions for religious exercise are clearly separationist: they keep the government from intruding deep into private religious exercise. They separate religious exercise from prosecutors and from the coercive powers of any other government regulators.
Neutral government funding for religious institutions is clearly not institutional separation, and it violates a core principle for the interest groups who most prominently claim the separationist label. But neutral funding is separationist in a different, and to me, more important sense. It separates religious practice from the coercive effects of the government’s power of the purse.
Why Religious Liberty?
Larry Sager and I have had a friendly disagreement about religious exemptions for more than thirty years. But by now, we are engaged in essentially different disciplines. His article with Mark Greenberg asks whether religious exemptions are justified in the abstract under their understanding of moral philosophy.Footnote 87 They do not discuss the constitution in their article, nor the reasons why the constitution protects religious liberty in particular. Larry has of course addressed constitutional interpretation in some of his earlier work.Footnote 88
One reason I would protect religious liberty is that the constitution says so.Footnote 89 That is not a widely accepted argument these days. But if we feel free to pick and choose, deciding which constitutional rights we like and which we think are no longer justified, we defeat the whole purpose of a written constitution. Stop enforcing my favorite constitutional right today, and I may stop enforcing your favorite constitutional right tomorrow.
The constitutional right is to freely exercise religion, and exercise includes conduct and practice.Footnote 90 This protection is both important and morally justified. I agree that the conscientious scruples of nonbelievers must also be protected, and I have repeatedly written about why that is so and why it is consistent with constitutional text.Footnote 91 I would interpret religion in constitutional and statutory texts capaciously, taking account of the vast evolution of views about religion since the founding. I think that the Vietnam-era draft cases protecting nontheistic conscientious objectorsFootnote 92 were basically sound and should extend to both constitutional and statutory interpretation.
But this approach is anchored in analogies to what most judges would readily recognize as religion and religious conscience. It does not go as far as Greenberg and Sager’s position, which is not limited to conscience or its analogs. Greenberg and Sager would deny protection to religious conscience unless we extend that protection to all sorts of important secular motivations, apparently including “emotions, aesthetics, or prudence.”Footnote 93 Their view appears to be that the founders’ decision to protect religion as such in the First Amendment was an indefensible moral error.
I believe that the founders had ample reason for treating religion as a category and giving it special protection.Footnote 94 Most important, in history that was recent to them, government attempts to suppress disapproved religions had led to persecution and human suffering on both sides of the Atlantic.Footnote 95 In Europe, it had led to years of war and millions of deaths. To address that problem, the founders had to protect religious practice and not just belief. Religious minorities cannot live in a jurisdiction if their faith is illegal, but neither can they live in a jurisdiction if their important religious practices are illegal.Footnote 96
So religious exemptions followed quickly in the wake of free exercise. Even Massachusetts and Connecticut, the most intolerant of the colonies, began enacting statutory religious exemptions soon after they agreed to allow religious freedom at all.Footnote 97
In our time, religious disagreements are at the heart of our political and cultural polarization. The only way for people with such fundamental disagreements to live in peace and relative equality in the same society is to agree to live and let live: I won’t mess with your religious commitments, and you won’t mess with mine. That requires religious liberty and religious exemptions.
Sager’s refusal to protect religious exercise as such does not mean that he would not protect it at all or that he is necessarily hostile to religion. In his work with Chris Eisgruber, he elaborated a creative approach to exemptions. Subject to some important limitations discussed below, they would require exemption for religious exercise if government has exempted a comparably serious religious or secular commitment from the same regulation.Footnote 98 This is somewhat similar to the best understanding of Employment Division v. Smith,Footnote 99 an understanding that I have long urgedFootnote 100 and that the Supreme Court at last appears to have adopted.Footnote 101
Eisgruber and Sager would also exempt religious exercise when government has exempted some comparably serious religious or secular commitment from a similar regulation,Footnote 102 and even if there are comparable exemptions from not-so-similar regulations.Footnote 103 They would be creative and expansive about drawing these analogies, but they recognize that “[s]uch comparisons will defy judicial resolution.”Footnote 104 The Supreme Court has done something at least somewhat similar, and with a clearer and more manageable standard, requiring religious exemptions when the government fails to regulate conduct that is different from the religious exercise at issue but “endangers the [government’s asserted] interests in a similar or greater degree.”Footnote 105
Finally, and even further beyond judicial ken, Eisgruber and Sager would exempt religious exercise when they predict that the government would exempt some comparably serious mainstream interest if the issue ever arose.Footnote 106 This is how they treat Lyng v. Northwest Indian Cemetery Protective Association,Footnote 107 a case where the government wanted to build a road for lumber trucks through isolated land sacred to certain Native Americans. Eisgruber and Sager, and, apparently, Greenberg and Sager,Footnote 108 believe that the government would not have built the road if the land had been sacred to Catholics or Jews or if it had contained a stand of redwoods of special importance to environmentalists.
Eisgruber and Sager describe their approach as a requirement of “equal regard.”Footnote 109 They acknowledge that “it is not easy to specify precisely the demands of equal regard,” and that “equal regard will be underenforced by the judiciary.”Footnote 110 Greenberg and Sager’s account of “equal regard” in this festschrift appears even more complex and nuanced. Equal regard “does not require equal treatment” or “treating like cases alike.”Footnote 111 It turns instead on the government’s “attitude,” its “motivation,” and the “message” that regulated groups might reasonably infer from its actions.Footnote 112
I have described and criticized the earlier versions of this approach elsewhere,Footnote 113 and Tom Berg has carried the analysis much further than I did.Footnote 114 In an ideal world, this approach would vastly complicate the litigation without changing many results. With real world judges and not a judiciary of Sagers, Eisgrubers, and Greenbergs, the analogies and predicted analogies are likely to fail, occasionally or frequently, as they acknowledge. Every time that happens, religious liberty will be left unprotected. They look to legislatures to implement their approach instead,Footnote 115 but that is obviously a pipe dream. And it is precisely legislative failures that constitutional rights are supposed to protect against.
“Equal regard” would ask, among other things, whether the government’s motivation for protecting the analogous conduct but not the religious conduct is a “devaluative” reason—a reason that devalues religion.Footnote 116 This of course opens the door to all sorts of hard-to-evaluate post hoc rationalizations, making the approach even more unworkable than it already was. If the right to free exercise is to depend on a threshold showing of discrimination, it is much better to retain a bright-line rule that unequal treatment is suspect, and invalid unless justified by a compelling government interest. Inquiry into the government’s reasons for unequal treatment should go at the end of the case, under the compelling interest standard and with the burden of persuasion on the government. It should not go at the beginning of the case, under an unspecified and potentially deferential standard of review and with the burden of persuasion on the plaintiff. Why Sager finds the compelling interest test unworkable, but his own far more complicated proposal workable, is something of a mystery.
Conclusion
I stumbled into the field of religious liberty somewhat serendipitously nearly fifty years ago, commenting on Catholic Bishop v. NLRB Footnote 117 in a review of recent civil liberties decisions from the Seventh Circuit.Footnote 118 The Supreme Court took the case and affirmed the Seventh Circuit,Footnote 119 which led me to write a broader and more ambitious article.Footnote 120 I didn’t know nearly enough at that stage of my career to write something so ambitious; I eventually had to amend and correct important parts of it.Footnote 121
But the effort put me firmly in the field, and the field has held both my intellectual interest and my policy interest ever since. I am glad to have spent a large part of my career defending the religious liberty of the American people and to have made at least some difference some of the time.
Acknowledgements and Citation Guide
This essay is a response to the articles on religious liberty presented at a festschrift in my honor at the University of Texas Law School in September 2024. The articles on remedies appear in volume 44, issue 2, of the Review of Litigation, and my response is published as Douglas Laycock, A Life in the Law: Remedies, 44 Review of Litigation 355 (2025). I declare the following competing interests: I have been asked to write about myself and my own work in response to laudatory comments from my friends. Citations in this article follow The Bluebook: A Uniform System of Citation (21st ed. 2020) as adapted for international readers by the Journal of Law and Religion.
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