The Hedgehog Review: Vol. 15, No. 3 (Fall 2013)
Why Tolerate Religion?
Princeton, NJ: Princeton University Press, 2013.
Reprinted from The Hedgehog Review 15.3 (Fall 2013). This essay may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission. Please contact The Hedgehog Review for further details.
America’s tradition of religious freedom has long provided for special treatment of religion: special protections and special limitations. The Supreme Court’s record of interpreting the establishment clause (“Congress shall make no law respecting an establishment of religion”) and free exercise clause (“…or prohibiting the free exercise thereof”) of the First Amendment has reflected this understanding, with the Court guaranteeing religious practice unique protection from government interference and imposing unique restrictions on government involvement with religion.
In recent decades, however, a growing number of legal thinkers have challenged this special treatment, particularly special protections under the free exercise clause. The shift is illustrated by changing attitudes toward an issue that has long been at the center of free exercise jurisprudence. Before 1990, the Supreme Court interpreted the free exercise clause to provide religious individuals relief when the state interfered with the practice of religion, even if the government had not intended to burden such practice and even if its laws were generally applicable to religious and nonreligious conduct alike. The Court’s position was that religious believers are entitled to exemptions from neutral, generally applicable laws that substantially burden religious practice as long as application of the law to the believer is not necessary to achieve a compelling state interest. So in Wisconsin v. Yoder (1972), the Court exempted Amish parents from Wisconsin’s compulsory schooling law, allowing them to take their children out of school after the eighth grade. In the same ruling, the Court observed that parents with secular objections were not entitled to the same relief.
But in 1990, the nation’s highest court reversed course, abandoning this special protection for believers in all but a few categories of cases. In Employment Division v. Smith, the majority ruled that the state—in this case, Oregon—could deny unemployment payments to two members of the Native American Church who had been fired from their jobs as drug abuse counselors for using peyote, even though they claimed it was part of a religious ritual. While the ruling upheld the principle that government cannot discriminate against religion, it asserted that religious believers do not have a right of exemption from neutral, generally applicable laws.
While the Court’s ruling in Employment Division v. Smith was initially met with widespread shock and outrage, legal thinkers have increasingly defended it on the grounds that singling out religion for special protections is unfair. As the United States grows both more religiously pluralistic and more secular, such thinkers see matters of religious and nonreligious conscience as interchangeable in terms of First Amendment protections. Even though the Court has most recently affirmed the distinctiveness of religion—recognizing, for example, a “ministerial exception” from employment discrimination laws in its 2012 ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission—and even though many legal theorists continue to affirm this distinctiveness, resistance to special protections for religion has also grown more common and more insistent. With Why Tolerate Religion? Brian Leiter has joined this resistance. Leiter is not a religion clause specialist. He is a distinguished philosopher of law who explains that his interest in the debate developed while he was teaching at the University of Texas and witnessed “the pernicious influence of reactionary Christians on both politics and public education in the state"....