On Thursday I had the pleasure of joining the panel discussion of religious liberty during the Obama Administration. As I said at the outset of my remarks, I'm not a natural selection for this panel. I'm neither a scholar of the religious liberty jurisprudence nor a practitioner specializing on those areas.
My own work, both my research and my practice, focuses more broadly on the administrative state, and the constitutional issues surrounding it. But religious liberty is an issue I care deeply about, and in recent years I’ve been struck by the extent to which our modern debates over religion, government, and the Constitution are deeply affected by—I would say driven by—changes in the nature of our government.
My comments on the panel were drawn largely from two articles that outline my thinking: most recently for The Weekly Standard, and for Commentary. As I noted in the talk, today’s debates over religious liberty cannot be fully understood without recognizing that current controversies over religious liberty tend to be not conflicts arising from the administrative state and the other nondemocratic part of government, the courts.
Classic free exercise cases tend to involve a conflict between the public majority and a minority. For example, the State of Wisconsin passes a general law requiring students to go to school; that general requirement conflicts with Amish religious beliefs. Which side should prevail, and which one relent?
Those are difficult cases. But they are not today's cases—at least, they are not the most prominent, significant of today's cases.
Instead, current controversies over religious liberty—say, conflicts between newly created same-sex marriage rights and religion, or transgender status and religion, or contraception and religion—are driven not by a broad public majority by an elite minority, either the bureaucrats in regulatory agencies or the litigators and judges in courts. Or in litigation endorsed and urged by regulators.
And the laws created by these elite minorities are not broad-minded, broadly-worded laws that just happen to bump up against religion. Rather, they too often seem to be deliberately targeted at disfavored religious minorities—the people who President Obama described in 2008 as folks in “small towns in Pennsylvania and . . . small towns in the Midwest,” folks who are frustrated and who “get bitter, they cling to guns or religion or antipathy toward people who aren’t like them[.]”
So what’s the difference between the older image of religious liberty disputes, and our current disputes? The difference is checks and balances that temper—or are supposed to temper—political decision making with deliberation and compromise, and the swift, unilateral policymaking of agencies and courts who can declare the law in absolute terms, and let collateral chips fall where they will. As the Chief Justice said in Obergefell, "federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right."
I think of Justice Scalia in Smith. In ruling against the Native Americans, he wrote, "values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” Thus legislation tends to produce compromises and exceptions.
Americans are perfectly capable of making these sorts of compromises—just as they did in the Religious Freedom Restoration Act, which strikes a balance even though it relies on courts to administer that balance. (In those cases, judges will get some right, and some wrong; but this beats the alternative.)
But when social policies are decided in courts and agencies, the very character of the debate changes. Compromise is replaced with assertions that your opponents are irrational, or hateful. And, as Yuval Levin noted this week in his Erasmus Lecture for First Things, there is also the risk that religious liberty will come to be treated as an opt-out from society, rather than a contributor to democratic society's flourishing—a necessary evil in democracy, not an affirmative good.
This is deeply worrisome. We should be all the more worried as more power gravitates away from Congress, toward agencies. These conflicts will become deeper—more common, not less.
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Adam J. White is a visiting fellow at the Hoover Institution.