That’s the title of a new book by Kathleen Brady of Emory Law School. It’s basically a reinterpretation of the role that religion plays in public life and how it’s treated similarly to and differently than secular belief systems under U.S. law — and it’s fascinating.
The Liberty Fund’s Library of Law & Liberty recently had an online symposium about the book, featuring a lead essay by Prof. Brady and responses by Hillsdale history professor D.G. Hart and myself, and a reply by Brady. Here’s a bit of my essay:
Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non‐religious belief systems? Why do we still mostly speak of religious free exercise and not so much freedom of conscience or other formulations of broader ideological protections? Why, for example, does an institution like the Hosanna‐Tabor Evangelical Lutheran Church and School get exempted from employment‐discrimination laws but not the Cato Institute (which is just as opposed to government incursions on how it wants to operate)?
The answers are complicated, although impingements on religious liberty increasingly have the same cause as impingements on secular liberty: an overweening state whose regulatory tentacles reach more and more into that part of the public sphere that is non‐governmental. The government, especially a federal government liable to be insensitive to state and local contexts, foments clashes of values where none existed previously. At the same time, the culture has shifted in an illiberal way such that certain views and behaviors—which don’t otherwise threaten public order or the state—have to be stamped out with the force of law, rather than tolerated or even celebrated.
Indeed, the reason we’re even “rethinking religion clause jurisprudence,” to quote Brady’s subtitle, is because people’s attitudes toward both religion and government have shifted. The growing enforcement of centralized ideological conformity, as I’ll describe below, is a real innovation in the use of governmental power. The issue isn’t that Congress is taxing, spending, and borrowing more than it ever has—that’s a different problem—but that it’s forcing more mandates into what used to be private decisionmaking. It’s shifting the boundary between the private and public spheres, and the shift tramples individual agency and narrows the choices that people are allowed to make in pursuit of their particular version of the good life.
Read the whole symposium — and the book.