Most people in the West today agree that the free exercise of religion is a fine thing. They congratulate themselves on the progress we have made over the benighted convictions of our forebears. Scratching the surface of this seeming unity, however, we find that discord abounds. Most would agree that the free exercise of religion ought to protect not only religious beliefs but also the practices that flow from them. They would also concede, however, that a limiting principle or endpoint must exist. Probably nearly all know of no one, for example, who would argue that human sacrifice must be permitted if this practice flows from sincere religious conviction, even if the persons to be sacrificed agreed and considered their status an honor.
In a liberal polity of increasing diversity, the challenge is how to honor the conscientious convictions of as many individuals and groups as possible without allowing the free exercise of some to impinge upon the practice of the conscientious convictions of others. I believe that some manifestations of the free exercise of religion , or more broadly, of conscientious belief , are both acceptable or essential in a liberal polity, but that others are not. How may we make these distinctions? It is on this question that we find widespread disagreement. It reminds one of opinion surveys during the Cold War that found strong agreement that freedom of speech and association were admirable parts of the First Amendment. When asked about free speech for Communists or their freedom to organize, however, most respondents replied with some variant of, âOh--I didnât mean them!â
A tension exists between two types of claimants who frequently argue that the free exercise of their religious beliefs is being stifled. On the one hand, members of small or marginalized groups such as Jehovahâs Witnesses, the Old Order Amish, and Orthodox Jews have historically made claims to religious exemptions . Muslims in the United States have experienced suspicion and hostility following the terrorist attacks of September 11, 2001, not only as individuals, but also as communities when governmental entities have mounted roadblocks to the building of mosques. Marginalized groups have typically desired the negative liberty of freedom from interference with the free exercise of their beliefs.
On the other hand, the proliferation of religions combined with the activity of government has expanded the area within which religious individuals and communities may feel burdened . âReligious associations want not only exemptions from certain obligations but also a share of public benefits, and courts and legislatures are forced to articulate the grounds on which they extend or deny public funding for the activities of religious groups in specific areasâ (Rosenblum 2000, 13; see 12â14; Gill 2004; Marcosson 2009). Some interpret public support as constituting a forbidden establishment of religion , or at least as an endorsement of religious belief and practice . Others, however, argue that conditions attached to this support threaten the free exercise of religion , that is, the living out of the implications of oneâs faith in the world. Implicit in this challenge, furthermore, is the assumption not only that government is responsible for ensuring religious freedom , but also that âthe government may have a positive obligation to ensure the conditions of religious flourishing,â or at the very least, ârefrain from policies that have the effect of weakening religion and threatening the viability of faith-based groupsâ (Rosenblum 2000, 14). These positive obligations may involve public funds , but they may also extend to the autonomy of both individuals and groups to act in accordance with their conscientious beliefs in ways that impact the lives of those who may not share these beliefs.
Burwell v. Hobby Lobby (134 S. Ct. 2751 [2014]), in which the Supreme Court upheld the right of Hobby Lobby as a family-owned commercial entity to exclude from its health insurance plan forms of contraception the owners considered abortifacients, exemplifies this second type of controversy. These individuals believed that their conscientious beliefs would otherwise be stifled, and they therefore called upon the government to legitimate their exercise. Although this decision may betoken a negative freedom from interference, it also represents the assumption by the government of a positive obligation to establish a framework within which these beliefs may be lived out. A policy that allows conscientious objectors to military service to engage in some alternative directly affects only those individuals. Policies that directly affect the interests of others, however, fall into a different category. They appear to critics as support for or endorsement of public policies that advantage religious beliefs over the convictions of those who may not share them.
Some commentators place both types of claimants in the same category. For example, Allen Hertzke places the 2012 blocking of Muslims from using their new mosque in Murfreesboro, Tennessee, which directly affected only that community, on the same plane as the state of Massachusetts in 2006 refusing conscience accommodations in state licensing requirements involving public funds to Catholic Charities when it objected to processing adoptions by same-sex couples. The unifying factor in his lengthy list of examples, Hertzke contends, âis the lack of weight given to religious claims or needs, and a corresponding ignorance about the contributions of religious communities to a vibrant civil societyâ (Hertzke 2015, 5; see 3â6). According weight to religious claims or needs, however, does not mean that all claims to religious exercise are created equal. Although many religious activities may affect others either directly or indirectly, these effects do not always equally impact the lives of those others. Being blocked from using oneâs place of worship, for example, substantially impacts worshippers themselves in the living of their own lives. Being denied the right to refuse adoptions to same-sex couples, on the other hand, arguably impacts the lives of these couples more than it affects the lives of those denied the right to discriminate. Neutral and generally applicable laws, as we shall see, may facilitate the free exercise of religion in many cases where specific exemptions would be excessive.
Historically, the conditions of religious flourishing were present by default when most people, even religious minorities , thought of the United States as a Christian nation with few exceptions. Historian David Sehat suggests that liberals are mistaken when they argue that the United States carries a history of unquestioned religious freedom that conservatives now wish to curtail in the interests of Christianity. He also suggests that conservatives are mistaken to declare that the United States is a Christian nation that liberals now want to secularize. Conservatives âare not wrong. In many ways, it was a Christian nation in that Christians had significant control over law and government and used it to enforce morality. But if it was a Christian nation, it was not so by consent. ⌠The presence of numerous dissenters undermines conservativesâ claims that they are merely trying to recapture a role for religion that most people desire. If religion supported morals by common consent, there would be no need for the coercion of lawâ (Sehat 2011, 8; see also 288â289). Many states, for example, originally had blasphemy statutes, and even in states without them, individuals were sometimes convicted on the grounds that Christianity was part of the common law, and that blasphemy, Sabbath-breaking, and indecency tended to corrupt morals and to destroy the civil order (60â63).
Although most people would agree that today, the United States comprises unprecedented religious diversity, including agnostics, atheists, and freethinkers, many also want nothing to change. An underlying theme suggests that the majority has a right to uphold the traditional dominance of Christianity as a form of patriotism. In the extreme, this point is illustrated by Bishop Eddie L. Long of the New Birth Missionary Church in DeKalb, Georgia, who in 1998 led a questionable Christian âMotivational Assemblyâ at a local public high school in response to a recent fatal stabling on school grounds. Bishop Long âwould remind non-Christians that they are merely respected guests in a nation founded by Bible-believers. âI go all the way back to the root system,â he explains. âYouâre welcome in my house, but you will not change the way this house, or this nation, is runââ (Cumming 1998, 12).
Conflict centers, of course, on what the rights of Christians are. What would Christians such as Bishop Long think if Islamic, Jewish, or Shinto beliefs had been historically predominant in this country? As Sehat explains, âIn one definition , religious liberty was a product of Christianity and in service to Christian religious expression; the guarantee of religious liberty was a guarantee of institutional religious rights. In the second definition , religious liberty was the right of the individual to believe what he wished without interference from the governmentâ (25). Even with the disestablishment of religion as the end of state monetary support for churches, the first definition was compatible with a moral establishment that âupheld the ideals of Christianity in the name of the public goodâ (36). The second definition had the capacity to protect smaller, perhaps unconventionally religious groups and individuals, including freethinkers, whose conception of the free exercise of religion was quite different. This definition also implied that religious groups could not use the government to violate othersâ rights. âIn other words, it required complete separation of church and stateâ (25; see also 33â41).
Many religious citizens today, however, including both members of the Christian majority and adherents of some minority religions, would agree with political theorist William Galston in criticizing John Rawlsâs position that individuals should independently form their own conceptions of the good and valuable in life. Galston argues that a public commitment to Enlightenment rationalism âtends to exclude individuals and groups that do not place a high value on personal autonomy and revisable plans of lifeâ (Galston 1991, 153; see also 130, 276, 329n12). If liberal democracy is to be neutral with regard to rival conceptions of the good (Dworkin 1985, 191; 1978, 272), Galston suggests, the state cannot promote personal autonomy âwithout throwing its weight behind a conception ...