In an important article , Allan Hertzke reflects on the threats to religious liberty in the aftermath of the CLS v. Martinez decision. While he admires Justice Antonin Scalia’s dissent in that case, he wonders if we are not now reaping what Scalia sowed back in 1990, with his opinion for the Court in Employment Division v. Smith . In that case, the Court struck down the requirement that laws and policies trenching on the free exercise of religion be subjected to “strict scrutiny”: they were valid only if they served a compelling state interest and were the least restrictive means of accomplishing that interest. Writing for the majority, Justice Scalia argued that applying this level of scrutiny to generally applicable laws made each person and his conscience a law unto himself, thereby “courting anarchy.” Better to leave the accommodation of religious conscience to the legislative process, he argued.

Here’s the core of Hertzke’s response to Justice Scalia:


Scalia’s remedy—explicit legislative exemptions—is mostly illusory. Not even the most prescient lawmaker can foresee the limitless ways regulatory bodies, educational institutions, public commissions, and judges will interpret and apply statutes.

Those who agree with the Smith decision make the case that key Founders, such as James Madison, did not see the Free Exercise clause of the First Amendment as requiring religious exemptions from otherwise valid secular laws. And there is decent evidence for this claim. Vincent Phillip Munoz documents that, much as they differed on religion, Madison, Washington, and Jefferson did not envision such exemptions from general laws.

What none of the Framers could have imagined, however, is the rise of our vast regulatory regime. As extensively documented by political scientists, legislatures at all levels in the modern era have ceded enormous discretion to regulatory bodies, whose ambit reaches into every nook and cranny of societal life. Thus, it is often not the general law that is bothersome to religious persons and institutions, as Frankfurter and Scalia contend, but the interpretation of the law by a host of regulatory agencies, boards, equal opportunity commissions, and educational institutions. This powerful, unelected arena of government is disproportionately run by bureaucratic elites ignorant of the burden placed on believers or skeptical of the value of religious civil society.

Nowhere is this more evident than in the looming train wreck between gay marriage and religious freedom, made imminent by the recent court challenge to California’s marriage law. To be clear, the principal threat comes from the radical redefinition of marriage—as opposed to various civil union provisions—because marriage between husband and wife is uniquely embedded in religion, law, and custom as the foundation for societal regeneration and human flourishing. Yet to many in the intelligentsia, the only possible explanation for opposition to marriage rights for homosexuals is bigotry. If that revolutionary view is enshrined in law, ancient cross-cultural understandings of marriage as part of the divine order—not to mention centuries of English legal tradition upholding the state’s vital interest in supporting stable procreative marriages—will suddenly become illegitimate and subject to legal sanction.


Herztke calls our attention to this book , which for the most part paints a bleak picture of the prospects for religious liberty, should same-sex marriage be enshrined in law. Some of the contributors to the volume argue that efforts should be made to entrench protections for religious liberty in the law.

Hertzke prefers to attempt judicially to restore the status quo ante Smith and hopes that Justice Elena Kagan’s documented past friendliness to religious liberty will be manifest in her jurisprudence. His strongest argument in this connection is that if the Court deployed its moral authority on behalf of religious liberty, it would place a strong counter in the hands of beleaguered religious groups and sway the hearts and minds of legislators and policymakers confronted with the claims of conscience.

I have to confess, however, that I’m less hopeful that he is. The Clinton-era Kagan, who voiced her strong support for the Religious Freedom Restoration Act, has probably “evolved” since then. Can you now imagine a mainstream Democrat (like Bill Clinton, in whose Administration she served) signing into law the Defense of Marriage Act? And even if she might in the abstract favor religious freedom, I fear that she would nevertheless regard protecting the civil rights of gays as a compelling state interest, in the name of which religious liberty could be abridged.

Judges do deploy their moral authority to influence public opinion, but that’s certainly not a foolproof device. For this audience, I need only utter the name “Roe” to suggest that courts sometimes offend rather than inform consciences. And we need go no further than President Obama’s great Illinois forebear Abraham Lincoln to see how else public opinion can be influenced and who else can do it. Consider this from Lincoln’s first debate with Douglas :

In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.

A President genuinely friendly to religious liberty and genuinely embracing religious pluralism would be most welcome here. On a number of fronts, I have my doubts about whether Barack Obama is that President.

There is no substitute for continuing to make the arguments in the public square, and for people of faith to bear their witness as winsomely as possible. Hertzke does us a great service by drawing together a number of strands of argument to show us where the threat lies. I wish he had a better solution to offer.

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