What If Religion Isn’t Special Enough?Bettina Krause September/October 2022
Defenders of religious freedom in the United States are walking toward a cliff’s edge that most of us don’t want to acknowledge is there. In fact, recent events at the Supreme Court make the danger up ahead even harder for us to see.
Consider Kennedy v. Bremerton School District, the football coach prayer case. The newly composed conservative majority of the Court delivered what many are applauding as a robust defense of religious free expression rights. Many within the religious freedom community also celebrated the majority’s opinion in Carson v. Makin, which says Maine can’t exclude religious schools from a generally available funding program.1
I wonder, though, if we need to consider some longer-term realities.
Associate Supreme Court justice Samuel Alito drew scathing criticism from the left when he traveled to Rome in July to address a conference on religious liberty. In terms of public relations optics, he probably didn’t do much for the Court’s claims to neutrality. As more than one commentator has pointed out, this was a case of a Roman Catholic Supreme Court justice traveling to the geographical hub of his faith. There he addressed an issue of ongoing importance to the Court, in front of folk who’ve had past business before the Court on this issue and who probably will, also, in the future.
Regardless of all of this, Justice Alito’s speech nailed one very important point. In the context of increasing hostility toward religious freedom within Western liberal democracies, he observed:
“Polls show a significant increase in the percentage of the population that rejects religion or thinks it’s just not all that important,” Alito said. “And this has a very important impact on religious liberty, because it is hard to convince people that religious liberty is worth defending, if they don’t think that religion is a good thing that deserves protection” (emphasis added).2
In 1999, 70 percent of Americans reported that they belonged to a church, synagogue, or mosque. Last year it was 47 percent. It was the first time in the eight decades that Gallup has been tracking religious demographics that less than 50 percent of Americans reported belonging to a house of worship.3
For now, America remains a religious nation in at least one important sense. More than seven in 10 people still consider themselves affiliated with some type of organized religion. But the reality is that our behavior, measured in actual participation rates, shows that the influence of faith is waning in the everyday life of most Americans.
Does religion merit special treatment in our society? Should religious individuals or institutions, for instance, be granted exemptions from some laws that others are required to obey?
More to the point, how will these questions be answered in the future within an America in which a majority doesn’t identity as religious?
A decade ago University of Chicago Law School professor Brian Leiter published a book provocatively entitled Why Tolerate Religion? In it he forcefully argued why, from the perspective of a secular person, religion isn’t special enough to deserve exemptions from laws that are neutral in their intent and that apply equally to everyone.
“Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy,” he asks, “while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife?” We could also ask, Why should a religious adoption agency, or university, or any other religious institution, be exempt from some nondiscrimination requirements? Why should a Seventh-day Adventist employee receive workplace accommodation for Sabbath keeping and not someone else who wants to take Saturday off for a regular family event? Why should the government, and thus the taxpayer, be burdened with the trouble and expense of meeting the special dietary requirements of a Muslim or Jewish prisoner?
The problem boils down to this: If a majority comes to believe that religion isn’t special—that there’s no distinction between a “thus saith the Lord” and a moral principle grounded in a sincerely held philosophical position—why should religion receive special treatment under the law?
There are many possible rejoinders we can make, including the fact that it’s written right there in our Constitution that religion deserves special consideration and protection. But perhaps that fact alone isn’t completely reassuring given the recent reminders that neither constitutional interpretation nor the composition of the Supreme Court is static.
Alternately, we could argue that religious freedom is so connected with other fundamental human freedoms, such as freedom of association or speech, that to impair one is to impair all. Or we could argue that religion makes outsized contributions to society in the areas of health care, education, and provision of community resources of all kinds. Or we could emphasize research that shows the unique contributions religiously active people make in American society, helping build healthy families and communities. Or we could argue that protecting the rights of religious minorities contributes to the stability and richness of a society that values diversity. Or we could argue that throughout history, religious belief has cut deeper than any other human allegiance—that in the words of First Amendment scholar Douglas Laycock, religious beliefs carry extraordinary human meaning; they are “important enough to die for, to suffer for, to rebel for, to emigrate for . . .”4
As someone who treasures my faith and my freedom to practice it, I don’t need a great deal of convincing on the potential merits of any of these arguments. But an increasing number of people do.
I believe we should be deliberately developing a multilayered case for why religion is special enough for special treatment. We need arguments that hold true even if a majority comes to see the practice of faith as quaintly irrational, or even, at times, incompatible with core secular values.
In making our arguments, though, let’s not demonstrate a sense of entitlement. Let’s not give the impression that we’re intent on playing a zero-sum game and we don’t mind if Americans who don’t share our religious convictions end up being marginalized in important ways. At the sheer level of pragmatism, let alone principle, such attitudes are unhelpful given religious demographic trends.
Eventually we’ll arrive at that cliff’s edge where a secular majority will ask, “Why does religion deserve special treatment and special legal exemptions above and beyond other deeply held conscientious beliefs?” Whether or not we have good answers is up to us.
1 Not everyone considers the outcomes in these cases as unqualified wins for religious freedom. In this issue of Liberty, for instance, see Alan Brownstein’s analysis of the current trajectory of Supreme Court reasoning on First Amendment religion cases. And in the November-December issue of Liberty two attorneys will debate whether the outcome in Carson is a win or a setback for religious freedom in America.
2 A full recording of Justice Alito’s address at the 2022 Notre Dame Religious Liberty Summit is readily available on YouTube.
3 Jeffrey M. Jones, “U.S. Church Membership Falls Below Majority for First Time,” news.Gallup.com, March 29, 2021.
4 Douglas Laycock, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues 7 (1996): 317.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.