Are there convincing grounds for the law to treat religion differently from other human activities and concerns? When, if ever, does religious freedom call for exempting religious activity from the burdens imposed by generally applicable laws? Should courts require such exemptions under the Constitution, or should the matter be left primarily to legislatures? How should constitutional law treat claims of deeply felt secular conscience that conflict with the law?

Kathleen Brady's central thesis, in addressing these and other questions, is that religion is a distinctive activity, worthy of distinctive protection in law, because it involves connecting—or seeking to connect—with the ultimate reality. Religions say, in very different ways, that by connecting with this reality, the believer is transformed—saved or liberated in some way—and “sees things anew and how they really are” in relationship to a reality that is “eternal, absolute, and perfect” (84). Brady argues that the distinctiveness of religion is found in this feature more than in others that have been suggested, such as the special importance of religion to the believer, or the special role of religion in encouraging virtue, which Brady says are present in secular and nonreligious moral views, as well. Paraphrasing Paul Tillich, she says that the distinctive feature is “ultimate concern about ultimate reality” (103n7).

Brady argues that once we define religion's distinctiveness by its object, “other arguments [for its distinctiveness] become more convincing” (103). For example, she says, while nonreligious beliefs can be just as important, pervasive, and “integral to self-identity,” “the role of religious beliefs in shaping identity is different”: believers' conviction “that their lives are grounded in the ground of all that is gives them a sense of identity that carries with it a unique import and power” (103). On first reading, this seems a simple contradiction: either religion is uniquely important to identity or it is not. But Brady's point seems to be that even when we focus on the function that religion plays in human existence, we should constantly pay attention to the way in which that function is affected by religion's distinctive content: its direction toward ultimate reality, and the various ways in which that direction gives it “unique import and power” for the believer. The ultimacy of religion's object helps explain the variety of harms from denials of religious freedom that other scholars have emphasized. Among other effects, denying religious freedom may create a painful conflict among duties to different authorities; it may frustrate believers from connecting with and loving the highest good; and it may stir up fear in believers that they will suffer eternal loss, even punishment, for failing to follow the commands of the divine authority who knows best.

Much of Brady's book responds to the work of Ira Lupu and Robert Tuttle, who start from a somewhat similar premise—that religion's distinctiveness consists in its concern with ultimate and comprehensive reality—but reach quite different conclusions than does Brady.Footnote ² Lupu and Tuttle say—or come close to saying—that the only way in which governmental actions impacting religion tread on the terrain of ultimate reality is if the government makes an assertion or determination about a religious matter. On this view, generally applicable laws, no matter how seriously they restrict religion, do not make such assertions: thus Free Exercise Clause exemptions are generally unwarranted, and indeed in many cases constitutionally improper because evaluating such a claim requires religious judgments to determine the degree of burden the law imposes on religion.Footnote ³ Lupu and Tuttle explain the ministerial exception affirmed in Hosanna-Tabor v. EEOC,Footnote ⁴ on the basis that antidiscrimination suits by ministers against churches will force courts to make religious determinations, explicitly or implicitly, about the quality, suitability, performance, or role of a minister.Footnote ⁵ Brady's book, in response, makes an extended case for why religion's direction toward the ultimate supports broader constitutional protection for religiously motivated conduct. Restrictions on one's efforts to relate to the ultimate do impose distinctive harms, and thus they generate distinctive claims for autonomy.

Brady is somewhat unclear on whether religion is distinctive in another way: in its contributions to civic virtue and public purposes. She first says it it not but then takes that back somewhat, emphasizing that even today religion “informs and shapes America's social and political conscience” and “plays a central role in sustaining this conscience” (108). To what extent can the contributions of religion to civic virtue and social needs be an effective argument for religious freedom? This is an important question today, because one of the most salient arguments for the freedom of religious social-service organizations, in pragmatic terms at least, is that they provide essential, often distinctive, services to those in need. It is not simply that their faith basis provides a strong motivation for their services; sometimes the content of their service, by its openness to ultimate reality, gives them a distinctive capacity to transform lives, as Steven Monsma has documented with respect to prisoner re-entry initiatives and other programs.Footnote ⁶ As disputes involving religious social services become more common, these arguments will require increasing attention.

Ultimately, Brady proposes a standard for free exercise cases that seems quite sensible, especially with respect to the government interests that limit the scope of religious freedom.Footnote ⁷ I am somewhat uncertain about the meaning of her proposal to have two levels of constitutional exemption, “core” and “supplemental.” She proposes that government should have to satisfy strict scrutiny, by showing a “compelling” interest, when a law places a substantial burden on a practice “essential to the believer's relationship with the divine,” but a lesser standard when the law substantially burdens some other practice, there showing only that exemption would impose more than a minimal cost” (231–44). I appreciate the desire to have some intermediate standard between the strict compelling-interest test and the mere rubber-stamping of any generally applicable law. But I am not sure what line she proposes to draw between essential and nonessential practices, or whether courts could actually draw the line. After all, as she says, and as Lupu and Tuttle emphasize, courts “cannot challenge … how the plaintiff envisions the role of religious practice in his or her spiritual life” (230).

Under Brady's standard, the compelling-interest test probably should have applied in Bowen v. Roy and Lyng v. Northwest Indian Cemetery Protective Association, two cases involving claims by Native Americans where the Court refused to apply the test. After all, in Mr. Roy's view, preventing the government's use of the Social Security number was essential to his daughter's relationship with the ultimate. And for the Native Americans in Lyng, the high places were essential to their communing with the ultimate: the Court did not question their assertion that construction of a government road through that land would be “devastating” to their practices. Yet Brady seems to agree with the Court that exemption was unwarranted in those cases (232–33). Therefore, under Brady's proposed standard, I am still unclear what burdens would trigger the compelling interest test. But any regime of religious exemptions faces such issues; Brady's book stands as a valuable argument for why such exemptions should exist at all.