The latest issue of Dissent features an argument (sub. req.), by Austin Dacey and Colin Koproske, against the prevailing understanding of religious freedom in recent U.S. jurisprudence and, more generally, against the accommodation of claims on the grounds that they derive from a specifically religious belief and not otherwise:
Controversy in the summer and fall of 2010 over plans for the construction of an Islamic community center in New York City near Ground Zero reminds us that America’s legacy of religious freedom is by no means settled. Debates about the proper limits of religious freedom don’t arise only with respect to new Muslim populations. Even as conservative Christians seek to restrict Muslims’ freedom, they allege that their own freedom is under threat from aggressive secularism: school administrators are infringing students’ rights to pray and discriminating against creationist biology teachers. And atheists argue that their rights are violated when they are compelled to recite the Pledge of Allegiance.
As disparate as these views may be, they agree on the importance of religious freedom. And yet few of us have thought through its real meaning and implications. In fact, there are two quite distinct ideas that fly under the banner of “religious freedom.” The first is that people have the right to practice a faith, consistent with the rights of everyone else. We think this is vital and unassailable. However, as we will contend, it is misleading to label this idea “religious freedom.” The second idea is that religions deserve some special accommodations under the law that are not available to comparable secular institutions or commitments.
Traditionally cherished and unquestioned though it may be, this latter notion of religious freedom is philosophically unsound, legally incoherent, and morally indefensible. To make real progress in the conversation about church and state, we must give it up.
That the interpretation of the religious clauses of the First Amendment that they contest is a relatively novel development is itself an element of their argument:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The religion clauses of the First Amendment to the U.S. Constitution were perhaps the boldest and most novel assertions of the American experiment. Their formulators, Thomas Jefferson and James Madison, hoped “to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries,” as Madison put it. Neither man foresaw that the Free Exercise clause would come to mean what it does today: the “accommodation” of religion by granting practitioners a presumptive right to violate otherwise valid laws.
This is a relatively recent development. The seminal 1963 case Sherbert v. Verner concerned unemployment compensation for Adell Sherbert, a Seventh-day Adventist who was denied benefits under South Carolina law because she refused to take available suitable jobs. Sherbert felt religiously bound to reject such jobs because they would require her to work on Saturday, her Sabbath. The Court ruled in favor of Sherbert, granting her an exemption to the state law. This case, together with the 1972 decision in Wisconsin v. Yoder, set a far-reaching precedent: free exercise of religion entails that religiously motivated persons may disobey a valid and generally applicable law unless the government can demonstrate, first, that there is a “compelling state interest” in enforcing it and, second, that there is no alternative, less burdensome legislative means of pursuing this interest. In practice, this is a tall order, because a compelling state interest is considered more powerful than a merely “rational,” “important,” “valid,” or “legitimate” purpose.
The issue also features a response to Dacey and Koproske from political philosopher William Galston, who writes, against Dacey and Koproske’s contention that religion should not receive exceptional treatment under the law:
There are matters of conscience that, like religious claims, shape individual identity and are experienced as binding obligations. So yes, the zone of accommodation extends beyond religion. But it is religion that provides the paradigm for that zone.
Yet it is just this, “that religion has a traditional monopoly on claims of conscience,” that is the problem, write Dacey and Koproske in their reply to Galston.
The argument and both responses, available to Dissent subscribers, can be found here.
Note: The entire exchange is also available here (no subscription required).