What are the prospects for religious liberty in America?
Recent events have been rather promising. The Supreme Court finished its year’s work with not just a reversal of Roe v. Wade, but also two major decisions supporting the free exercise of religion. In Carson v. Makin, the Court held that Maine could not exclude religious schools from its tuition assistance program for private-school students, the latest in a string of decisions striking down programs that excluding religious schools from private-school subsidies. And in Kennedy v. Bremerton School District, the Court held that a school district could not prohibit a high-school football coach from praying after games.
Even the most notable recent case, though ominous in its origins, offers reason for optimism. The New York state courts attempted this summer to force Yeshiva University to recognize formally the YU Pride Alliance, notwithstanding the fact that such recognition would be antithetical to Yeshiva University’s religious mission and thus a grave violation of its religious liberty. While the Supreme Court declined to freeze the state courts’ decision preemptively while the case makes its way to the Supreme Court for full review, there still seems every reason to believe that if the Supreme Court does hear the case, it will rule in favor of Yeshiva University, given the court’s recent understanding of the First Amendment. Such a decision from the Supreme Court would reaffirm and reinforce the nation’s commitment to religious liberty.
Moreover, President Biden’s new appointee to the court, Justice Ketanji Brown Jackson, went out of her way to assure the Senate, and the public at large, that she believes strongly in this right. “Religious freedom is a core foundational constitutional right,” she told Senator Cornyn of Texas at her confirmation hearing. “It is in the First Amendment of the Constitution and reflects the founding fathers’ understanding of this country being one that is based upon, in large part, the idea of pluralism,” she emphasized. “The idea that people can come and have sincerely held religious beliefs and practice them without persecution—that is part of the foundation of our government,” she added.
And yet Justice Samuel Alito offered a much grimmer assessment in a speech in late 2020. Surveying recent developments in the collision of administrative power and the free exercise of religion, he offered a grave warning: “religious liberty is in danger of becoming a second-class right.”
If a progressive justice like Jackson can praise religious liberty in the highest possible terms, then what could Alito and religious believers have to fear?
The answer might be found in the observation of a third justice, Elena Kagan, though one made long before her own appointment to the Court. In 1999, Kagan was serving as deputy director of President Clinton’s Domestic Policy Council. The White House was grappling with legislation to supplement the recently enacted Religious Freedom Restoration Act, or “RFRA,” which Clinton had signed into law with overwhelming bipartisan support just a few years earlier.
But Kagan warned the president to tread very lightly, because RFRA’s protections were drawing criticism from those who feared that it would empower religious believers to discriminate against people on the basis of sexual orientation. In response to her colleague’s memo, she wrote an email warning that it would be impossible for the president to accommodate everybody:
I’m the biggest fan of RFRA . . . in this building, but you should not take this advice right now. You’ll have a gay/lesbian firestorm on your hands. (Alternatively, if you come out for a version of RFRA that has a civil-rights carve-out, you’ll have a religious-groups firestorm on your hands.) . . . We’ll let you know as soon as it’s safe to go back in the water.
More than twenty years later, we can see in Kagan’s email the crux of modern debates over religious liberty. It is one thing to praise religious liberty in principle, but quite another thing to protect it in practice when other values or policies are at stake. And, increasingly, religious liberty is seen as at odds with other values. Sometimes it is even seen, as Alito put it, as a second-class right.
To be sure, this problem is not entirely new. Religious liberty has long conflicted with other values. From those who would have forced Jehovah’s Witnesses to pledge allegiance to the American flag for the sake of schoolroom patriotism during World War II to those who would require Jews to participate in courtroom proceedings on the Sabbath for the sake of public order in the republic’s earliest days, American history is replete with stories of political majorities burdening religious minorities.
New iterations of this conflict differ from the old in at least two crucial ways. The first is well known: the American people are less religious, and claims of religious liberty thus have less instinctual purchase on the minds of political majorities. As Gallup reported in June 2022, Americans’ professed belief in God dropped to just 81 percent—its lowest level since Gallup began polling the question 78 years ago. (And among self-identified political liberals, the number sinks to 62 percent.)
The second difference is subtler, and it reflects the gap between the way in which our government was intended to work and the way that it actually works today. In the original constitutional approach familiar to any American who studied civics, new laws are made through a deliberative, multifaceted process: the House and Senate write legislation, iron out their differences in conference, and then submit the legislation to the president for his signature. But in truth, today’s federal government is better understood as an administrative state, in which the main engine of federal policymaking is not Congress but administrative agencies, which Congress for many decades has vested with immense power and discretion. This is not merely a difference in who governs, but in how they govern—the process, and the mindset. Regulators have a far more important role in the state of religious liberty than many recognize. And as the issues of religious freedom move from political value judgments debated in the public square by elected officials to quiet decisions made by regulators, the latter group’s power now portends much more pointed conflicts between the state and its religious citizens. Indeed, we already are seeing this playing out.
I. The Coronavirus Conflicts
The last several years have provided all too many occasions for conflict between the administrative state and the free exercise of religion. They offer examples—sometimes clear, sometimes subtle—of the fundamental tension between administrative power and America’s religious communities. They bring together many themes: the eclipse of legislatures by executives and administrators; the administrators’ efforts to convert private groups into arms of administration; and the re-conception of government as a primarily technocratic endeavor for which religious values are irrelevant—or worse. And the most salient set of examples are the most recent, arising during the COVID-19 pandemic.
At COVID-19’s outbreak, and especially amid the virus’s early eruption in New Rochelle, Andrew Cuomo and other governors imposed severe limits on religious gatherings. As the pandemic’s first year progressed, religious communities began to accuse some of them—especially Cuomo—of outright bigotry and animus. And, of course, states’ and cities’ burdens on religion—as opposed to burdens on, say, commerce or leisure—also raised special questions of constitutional law, given the First Amendment’s right against laws “prohibiting the free exercise” of religion.
American government has always been geared toward executive power during emergencies. At both the federal and state levels, the constitutions and statutes tend to facilitate (sometimes even explicitly empower) executives to make immensely consequential choices when a crisis strikes. And courts are loath to second-guess the executive in an emergency’s early stages.
So when religious communities began suing to challenge the constitutionality of COVID-19 mitigation measures, the courts were slow to rule against the governors. This included the Supreme Court, which repeatedly declined petitions to block the orders’ effects while litigation was pending.
The first of these cases arose from California Governor Gavin Newsom’s “stay at home” orders, which he issued through May 7, 2020. The South Bay United Pentecostal Church argued that the orders discriminated against religious gatherings, by imposing a hard cap of 25-percent capacity or 100 attendees—whichever was lower—for religious gatherings, while treating other non-religious gatherings more leniently.
The church sued in a federal trial court and soon petitioned the Supreme Court to block implementation of the order while the litigation was proceeding through all three levels of federal judicial review. But the justices declined to intervene at that stage in the case. Three conservative justices dissented from that inaction; they conceded that “California undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens,” but added that “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.”
Yet the chief justice’s own separate opinion, concurring with the court’s inaction, indicated that the question at hand was not so much one of constitutionality but of timing and of the judicial role: “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” he wrote, and such policy judgments “should not be subject to second-guessing” by federal judges who lack “the background, competence, and expertise to assess public health” and who are “not accountable to the people.”
In short, the governor’s swift and unilateral restrictions on religious gatherings raised difficult questions of both constitutionality and judicial capacity. The core question, of course, was whether the governor’s order violated the First Amendment’s right to free exercise of religion. But it was surrounded by questions of the courts’ proper role in scrutinizing the governor’s own judgments at such an early stage in the litigation, particularly in light of both the governor’s own political accountability and the claimed expertise of his advisors.
The court returned to such questions two months later, in a late July 2020 case arising from Nevada, where Governor Steve Sisolak’s restrictions on religious gatherings contrasted starkly with his treatment of Las Vegas casinos. Under the governor’s order, as Justice Samuel Alito would later describe it, “a church, a synagogue, or a mosque, regardless of its size, may not admit more than 50 persons, but casinos and other certain other favored facilities may admit 50 percent of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.”
As in the California case, the government’s disparate treatment of religious gatherings raised basic questions of religious liberty. And with the passage of two more months, the court’s conservatives were frustrated by the court’s unwillingness to intervene with a preliminary injunction to freeze the governor’s order while litigation was pending. “For months now,” Alito wrote, “states and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion.”
“This initial response was understandable,” he added, for in “times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations.” But, he continued, “a public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.” And as “more medical and scientific evidence becomes available, and as states have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.” In this case, Alito urged, “four months have passed since the [governor’s] original declaration” and the time for judicial deference had passed. “The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.”
And the discrimination was obvious. Whatever the merits of attendance limitations in churches and synagogues might be, the governor’s nominal justifications for imposing those limits on churches and synagogues but not casinos strained credulity, as Alito explained. Yet the court’s majority again declined to grant a preliminary injunction freezing the governor’s order while the case worked its way through the lower courts.
In November 2020, yet another COVID-19 case reached the Supreme Court. This time, the Roman Catholic Diocese of Brooklyn petitioned the court for an injunction to block Governor Cuomo’s own restrictions on public worship; four days later, a similar motion was filed by Agudath Israel. Each had filed federal lawsuits challenging his severe restrictions on religious gatherings in “red” and “orange” zones: no more than ten people per gathering in a red zone, and no more than 25 people in orange.
As with the other cases, the disparate treatment of religious gatherings relative to secular ones was obvious. The court’s opinion highlighted the fact that “essential” businesses were exempt from any coronavirus-related limitations on attendance in red zones—and the list of “essential” businesses, the court added, “includes things such as acupuncture facilities, campgrounds, garages,” and so on. In orange zones, moreover, even non-essential businesses were not subject to the same attendance limits as houses of worship.
This time, the court intervened. With the newly appointed Justice Amy Coney Barrett having succeeded the late Justice Ruth Bader Ginsburg, the court’s majority issued an order prohibiting the governor from continuing to impose such occupancy limits on the church and synagogue. The opinion accompanying the order—signed not by a particular justice but “per curiam” on behalf of all the justices in the court’s majority—detailed the discrimination evident on the face of the governor’s policy, and it also alluded to statements from Governor Cuomo that showed intentional animus toward Orthodox communities. As Agudath Israel’s opening brief recounted:
In a series of press conferences, the governor explained that he was enacting new restrictions on places of worship, in certain neighborhoods that contain many Orthodox Jews, because he believed that this religious minority is to blame for a recent increase in COVID-19 infection rates. The Governor left no doubt that targeting Orthodox Jews was his primary motivation. He described the problem he sought to address as “predominantly an ultra-Orthodox cluster,” adding that he planned to “meet with members of the ultra-Orthodox community tomorrow,” to let them know that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.”
The governor’s regulations “matched his discriminatory rhetoric,” the opening brief added, “as it was plainly gerrymandered to target the Orthodox Jewish community.”
Even under these circumstances, Chief Justice Roberts disagreed with the propriety of issuing a preliminary order against the governor while the litigation was pending. As he had urged previously, the sticking point was not the constitutionality of the governor’s actions—he recognized that “it may well be that such restrictions violate the free-exercise clause”—but rather the court’s role in enforcing the Constitution in a particular case. Here, the governor already had rescinded the policies; he might reinstate them, “but he also might not,” and until he did there was no proper need for judicial intervention.
Roberts was counseling in favor of judicial restraint, but he did not intend outright judicial abdication. In these initial cases, he thought it best to leave California’s, Nevada’s, and New York’s restrictions to the political process, at least initially. But the California governor’s assertions of executive power persisted well into 2021, eventually crossing a constitutional line that even the restraint-minded chief justice could not abide; when yet another case challenging a Newsom order in April, the court once again ruled against the governor, and this time Roberts joined the majority.
Collectively, the COVID-19 cases were so prominent because the context was extraordinary. A pandemic presents immensely consequential issues of scientific expertise, and the regulatory measures undertaken to combat it will place virtually unprecedented burdens on all aspects of daily life, including religion. Moreover, public-health emergencies trigger special legal powers for governors and presidents alike, further accelerating the government’s actions.
At the same time, those aspects were but heightened versions of the conflicts inherent in more familiar regulatory issues in normal times: the power of regulators to act unilaterally in making consequential decisions for the public; the gulf between the priorities and values of regulators and those of the regulated, especially in terms of religion; and the deference that courts generally show to agencies and executives administering broadly worded statutes on complex subjects.
We see this in non-administrative contexts too. The Yeshiva University case is a clear example: once the New York courts announced and began to implement their ruling, the university could appeal to the U.S. Supreme Court, but the mere possibility of appeal—indeed, the seeming likelihood that the Supreme Court will hear the case and eventually overturn the New York courts’ decision—does not obviate the blunt fact that Yeshiva University must comply with the New York order while its appeal is pending. (Hence the university’s decision last month to shut down all student organizations completely, to comply with the state courts’ order that they give the YU Pride Alliance equal treatment.) When the university petitioned the Supreme Court to freeze the state courts’ decision until the final appeal could be heard, the Supreme Court denied the petition. As in the initial coronavirus cases, Chief Justice Roberts was among the justices who did not want the court to grant preemptive relief before the case could be fully litigated. (And in this case, Justice Kavanaugh agreed with him and with the three progressive justices. Justices Alito and Thomas, meanwhile, dissented once again from the court’s refusal to grant preliminary relief, and Justice Barrett joined them.) The passage of time inherent in judicial review works to the advantage of the lower court, which, like energetic administrative agencies, gets the first-mover’s advantage.
II. The Obamacare Controversies
If the COVID-19 cases presented a particularly complicated mix of constitutional and procedural issues, other conflicts between religious liberty and administrative power are more straightforward. The most salient examples come from the ongoing dispute over the Affordable Care Act, abortion, and religious employers—especially the Little Sisters of the Poor, a group of Catholic nuns.
The ACA, better known as Obamacare, contained no actual requirement that employers provide abortions or contraceptives to employees through their health insurance. Indeed, the absence of such a requirement was crucial to the ACA’s enactment, as a bloc of pro-life Democratic congressmen had threatened to oppose the legislation absent assurance that it couldn’t be used to subsidize abortion.
Yet after its enactment, the Obama administration did precisely that. Invoking a section of the law that required all but the smallest employers to offer to their employees “a group health plan or group health-insurance coverage” that provides “minimum essential coverage,” the Department of Health and Human Services moved ahead to include contraceptives, including abortifacient drugs, in those mandatory health insurance benefits.
Recognizing the potential for conflict between the administration’s requirements and people’s religious beliefs, HHS also created a kind of exemption for religious employers. But it defined this category narrowly, covering only “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.”
In effect, the administration had construed religious liberty very narrowly, while construing the Affordable Care Act as broadly as possible. When two privately owned employers sued in federal court, arguing that these regulations violated the employers’ own rights under the Religious Freedom Restoration Act, the Justice Department’s lawyers argued in reply that its framework for health insurance promoted “compelling government interests” and that the burdens on the employers’ own religious beliefs were strictly necessary to achieve those interests.
But in Burwell v. Hobby Lobby (2013), the Supreme Court rejected the administration’s arguments in the strongest possible terms. “It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences,” Justice Alito wrote for the court’s majority. “RFRA was enacted to prevent such an outcome.”
This controversy continued with the Little Sisters of the Poor. They resisted the administration’s command to facilitate contraception and abortion through the provision of health insurance through federal certifications that would trigger the provision of contraceptives through a third-party insurer.
A federal lawsuit challenging the administration’s approach, once again under the Religious Freedom Restoration Act’s protections, arrived at the Supreme Court in 2015; but a year later the court declined to issue a decision, given the apparent prospects for a negotiated solution between the parties. Further negotiations with the Obama administration bore no fruit, but after President Trump’s inauguration brought new leadership to the agency the Little Sisters of the Poor and other groups received a full exemption after years of protracted regulatory and legal disputes.
Within a week of promulgating these new exemptions, HHS was hit with lawsuits from the other direction—from Democratic state attorneys general attempting to prevent the Trump administration from granting these exemptions to religious organizations. Thus the Little Sisters’ saga reached the Supreme Court yet again, where this time the court affirmed HHS’s exemption as a lawful implementation of both RFRA and Obamacare. Yet this was itself a reminder of the challenges that religious believers and organizations face in modern administration: as soon as another administration comes to power, the exemptions could quickly be thrown into doubt.
Indeed, President Biden announced during his 2020 presidential campaign, upon the Little Sisters’ Supreme Court win, that he would rescind their religious exemption. And to lead HHS, he appointed the former California attorney general Xavier Becerra, who had joined the lawsuit attempting to rescind the religious exemption.
It remains to be seen what the Biden administration might do next. But the conflict illustrates another basic tension between the administrative state and religious liberty. Congress has created myriad federal agencies focused on particular policy issues, and each new presidency brings fresh energy focused on each agency’s priorities. The regulatory agencies prioritize their own issues over religious liberty, and when they construe their statutes broadly to justify their policy aims, they necessarily construe the First Amendment and RFRA narrowly. Religious communities cannot rely on the good will of agencies; instead, they must rely on the White House, and on the courts, to rein federal agencies back in.
III. The Same-Sex Marriage Exceptions
When the Supreme Court heard oral argument in the Obergefell case, on a constitutional right to same-sex marriage, Justice Alito had a simple question: what would judicial recognition of a right to same-sex marriage do to the rights of religious organizations whose tenets are opposed to it?
He alluded to a decades-old case involving Bob Jones University, where the school’s rule against interracial dating, so palpably at odds with the nation’s modern rejection of race-based discrimination, cost the school its tax-exempt status as a nonprofit in the public interest. It was a laudable precedent on matters of racial discrimination, but what would happen, Alito asked, if the right to same-sex marriage received similar status as a constitutional right? What would happen to religious institutions that still criticized it—“would the same [approach in the Bob Jones University case] apply to a university or college if it opposed same-sex marriage?”
It was an obvious question, one that Supreme Court observers had awaited, and one that surely the Obama administration’s advocate had prepared for. So it was all the more remarkable to hear Donald Verrilli, the Justice Department’s solicitor general, admit that he simply did not know the answer. “You know, I—I don’t think I can answer the question without knowing more specifics,” he conceded, before adding, “but it’s certainly going to be an issue. I—I don’t deny that, Justice Alito. It is—it is going to be an issue.”
Solicitor General Verrilli was echoing the same wariness that Elena Kagan had expressed to her White House colleagues two decades earlier. Religions make judgments, distinguishing between rightful and wrongful conduct; but when those judgments contradict the values embodied by secular nondiscrimination laws, then political and legal conflict will be fraught but unavoidable. Kagan recognized that promoting religious liberty would spark conflict with the movement to protect same-sex couples through antidiscrimination laws; by the same token, enlarging antidiscrimination laws to protect same-sex couples could exacerbate the same conflicts.
And so, upon the Supreme Court’s recognition of a right to same-sex marriage, conflict ensued. The immediate effect of that decision was to prohibit deeply conservative states from withholding marriage licenses from same-sex couples. The further effect was to energize progressive states’ efforts to regulate companies deemed to be discriminating against same-sex couples.
In Colorado, for example, a Christian baker’s refusal to bake a custom-ordered wedding cake for a same-sex couple spurred the state’s Civil Rights Commission to investigate and punish the Masterpiece Cakeshop bakery, ordering it to change its behavior going forward, notwithstanding the fact that such requirements would force the baker to violate the professed tenets of his religious faith by participating in same-sex weddings. After Colorado’s state courts declined to overturn the commission’s decision, the baker appealed to the U.S. Supreme Court, arguing that the commission had violated his First Amendment right to exercise his religion freely.
The Supreme Court ruled in favor of Masterpiece Cakeshop, on grounds that proved important and illustrative but that also limited the significance of the court’s decision. The court found that the state commissioners decided the baker’s case with “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” The court’s majority opinion, written by Justice Anthony Kennedy, quoted statements from commissioners indicating that “religious beliefs and persons are less than fully welcome in Colorado’s business community.” The most egregious example was a commissioner’s assertion that religious beliefs are among “the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The baker, Justice Kennedy wrote, “was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.” But the state commissioners had accorded him a very different kind of treatment, and their mistreatment of his case violated his First Amendment rights.
To be sure, the court’s decision was a significant victory for the Christian baker, and for religious liberty more broadly. And the fact that the court’s opinion was written by Justice Kennedy—the very same justice who wrote the Court’s opinion in Obergefell—made the victory all the more significant, indicating that same-sex marriage and religious liberty could co-exist and indeed needed to co-exist.
Yet the court’s specific grounds for decision portended harder cases yet to come. It did not settle the more fundamental question of how the administration of federal or state nondiscrimination laws might be limited to preserve the First Amendment’s protection of religious liberty. And by resting its decision on commissioners’ explicit denigration of the baker’s rights, it unintentionally signaled to administrators the importance of not expressing one’s anti-religious biases out loud, on the record. At its best, Masterpiece Cakeshop was a great vindication of religious liberty; at its worst, the decision was a roadmap for more effective violations of that liberty.
Another case raising the more fundamental issue of religious liberty amid nondiscrimination statutes recently arrived at the court. In 303 Creative LLC v. Elenis, a website designer has preemptively sued the Colorado Civil Rights Commissioners, arguing that the state’s nondiscrimination laws unconstitutionally require her to design custom websites for same-sex weddings, violating her First Amendment rights to religious exercise and free speech. Because this case lacks the issues of personal animus that controlled the court’s decision in Masterpiece Cakeshop (at least at face value), it presents more squarely the core constitutional issue. But the court, which has significant discretion in choosing which cases to adjudicate, decided to hear only the free-speech issue, not the free-exercise issue. Thus the basic question left open by Masterpiece Cakeshop remains undecided, and state regulators have significant opportunities to construe their nondiscrimination statutes, and to manage their administration of those statutes against religious business owners, in ways that may not attract Supreme Court responses. (Perhaps it will be answered by the Supreme Court in the Yeshiva University litigation that, though not an administrative-agency case, arises from New York’s decision to pit the First Amendment and the New York City Human Rights Law against one another.)
These cases, like the Obamacare cases, exemplify the basic asymmetry of religious liberty issues in the administrative state. Regulators appointed to antidiscrimination commissions prioritize state antidiscrimination policies over the Constitution’s free-exercise clause. Without concomitant institutional commitments to religious liberty within the administrative process itself, religious believers need to count on courts or elected officials to restrain the agencies.
IV. The Competing Centers of Government
These are just a few particularly salient and recent examples of conflict between regulatory programs and religious liberty. There are many other examples available—indeed, we seem to be living through an era of increasingly prevalent and intense conflicts over religious liberty.
Some of this trend, perhaps much of it, owes to changes in the American people themselves. If America is becoming a less religious country, if religious believers no longer comprise the center of its political gravity, then we can no longer count on the political majority’s empathy to respect the minority’s religious beliefs and obligations.
Another change is significant, too: the change from legislature-centric governments to administrative-centric ones. The rise of the modern American administrative state has done more than simply change who is making our laws. It changes how they are made, and thus it also changes what laws are made. This transforms the relationship between religious minorities and the laws that govern them—instead of participants in a legislative process, those minorities become the objects of an administrative process.
I explored that subject last year in an essay for Commentary, reviewing a recent book that called for a supposedly “Madisonian” approach to religion-state conflicts: namely, the book argued that the Constitution’s free-exercise clause should be construed very narrowly, protecting only a person’s freedom of interior conscience and not a person’s freedom of exterior conduct. This, the author argued, would best reflect Madison’s preference for laws to apply equally to all people, without individual groups getting better or worse treatment based on their religion.
The problem with such an approach, I argued in my Commentary review, was that it was only half-Madisonian. That is, such thin protection for religious liberty suddenly has very different ramifications in the absence of all the rest of the constitutional institutions, procedures, and norms that James Madison himself was relying upon to protect religious liberty specifically and republican liberty in general. A genuinely Madisonian approach to religious liberty would start not with the First Amendment, but with the Constitution’s separation of powers and its federalism—Madison’s “double security” for “the rights of the people.” Explicit protections in the Bill of Rights are the last step, not the first.
As it happens, Madison’s constitutional structure was the premise of what we now think of as the key modern Supreme Court case on religious liberty: Employment Division v. Smith (1990). There, Justice Scalia, writing for the majority, held that courts must restrain themselves from granting religious believers exemptions from generally applicable laws (such as criminal drug laws) in the name of the First Amendment, because to grant each person an exemption based simply on the person’s claim of religious belief would in effect make every man a law unto himself. Instead of making courts an ad-hoc licensing board for religious activities, Justice Scalia’s majority opinion put its faith in democracy: “Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word,” he wrote, “so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.”
Indeed, after Justice Scalia and his colleagues announced their self-restrained approach in Smith, Congress voted overwhelmingly to protect religious liberty with the Religious Freedom Restoration Act. But as more and more laws are made unilaterally by executives and administrators instead of by actual legislatures—as seen in examples like the ACA—Scalia’s foundation for a genuinely Madisonian government falls away, followed quickly by the religious liberty that it undergirded.
This inherent gap—between Madisonian constitutional institutions that were built to accommodate religious pluralism, and the modern administrative institutions that were built to unify—is the starting point for diagnosing modern threats to religious liberty. But other features of today’s administrative state bear close attention for exacerbating government’s burdens on religion.
First among these is the administrative state’s increasing reliance on the private sector—employers, insurers, and others—to administer some of the most consequential federal social-welfare policies. Although the semi-privatized nature of federal healthcare policy dates back many decades, the Obama administration’s implementation of the Affordable Care Act highlighted how the government’s ever-increasing reliance on employers as the actual vehicle for delivering subsidized healthcare would create conflicts between the demands of employees and the religious liberty of those employers.
Suddenly organizations of religious clergy, like the Little Sisters of the Poor, and private corporations owned by religious believers, like Hobby Lobby, found themselves being commanded by the Obama administration to participate directly in the provision of contraceptives and even abortifacients to their employees. Congress had not specified those requirements in the Affordable Care Act’s actual text, of course, but the administration’s agencies pressed forward with their demands anyway, despite their burdens on religious liberty. The Obama administration’s degraded view of RFRA undermined the very nature of the act.
This issue arises only because federal subsidies for contraceptives and abortifacients are delivered through employers and insurers, instead of being paid directly by the government to the recipients. The more that federal social benefits are transmitted through private intermediaries, by operation of the tax code or other laws, the more that federal regulation will create new threats to religious liberty.
We see a similar issue in the proliferation of recent cases surrounding the administration of state nondiscrimination laws. When the Supreme Court declared a constitutional right to same-sex marriage, it protected same-sex couples from discrimination by the states. But that right was quickly transformed by the states themselves into new regulatory rights against other people—such as the proprietors of Masterpiece Cakeshop, who refused to hand-craft a cake celebrating a same-sex wedding.
These disputes are just a start. The more that administration becomes not just a matter of government action but of government policy extended through private people’s actions, the more government will burden the free exercise of religion.
V. The Technocratic Vocabulary
Finally, one must consider the basic vocabulary of modern administration. Regulation, at least at the federal level, is increasingly described and justified in the quantitative language of cost-benefit analysis and, more broadly, in the technocratic vocabulary of “regulatory impact assessments” and “environmental impact statements.”
This is not an altogether bad thing—quite the opposite. Environmental impact statements have helped to force government and companies alike to think much more seriously about the significant risks of harm that their projects might create, while cost-benefit analysis and regulatory impact assessments have forced regulators to think much more concretely and rigorously about new regulatory programs’ impacts on the real world. Indeed, the Reagan administration’s 1981 decision to make cost-benefit analysis a central part of White House regulatory oversight, in order to restrain agencies’ regulatory overreaches, is perhaps the most successful regulatory-reform initiative of the last half-century.
Yet among economists, as with cynics (to borrow a phrase from Oscar Wilde), there is a tendency toward knowing the price of everything but the value of nothing. If “American government is becoming a cost-benefit state,” such that “government regulation is increasingly assessed by asking whether the benefits of regulation justify the costs of regulation” (as Cass Sunstein correctly observes in his 2002 book The Cost-Benefit State), then American government will become increasingly attentive to factors that can be quantified, and decreasingly attentive to those that cannot easily be incorporated into a spreadsheet’s sums.
As it happens, Antonin Scalia recognized this from the start. In 1982, a few years before his appointment to the Supreme Court, then-professor Scalia warned that the Reagan administration’s laudable emphasis on cost-benefit analysis would have the unfortunate side-effect of reducing regulatory action to an increasingly cold and quantitative endeavor. By 1982, agencies already were deep into a re-conception of their work as the work of technocratic expertise, instead of the work of making and instantiating political value judgments; and the White House’s institutionalization of cost-benefit analysis as the administrative state’s official language would only exacerbate this trend, first in the agencies and then in the courts. The administration’s new cost-benefit approach would help to “foster a view of rulemaking as a more or less mechanical, value-free, nonpolitical exercise,” Scalia argued.
In recent years we’ve seen other examples of how uneasily religious liberty sits alongside administration, especially in the aforementioned cases. In the Cuomo case, for example, the Supreme Court’s majority defended the rights of religious communities when regulators “treat[ed] houses of worship much more harshly than comparable secular facilities.” Amid the justices’ sympathetic treatment of religious liberty, it is easy to overlook how strange it is to think of religious worship in terms of “comparable” secular activities. We can compare the volumes of air that are exhaled among congregations and in casinos, or how closely people come to one another when they kneel in church or stand at the craps table. But even to begin to think of these parts of human life as “comparable” requires looking past the profound differences between worship and commerce.
The same dynamic, one might point out, is what causes experts to justify people’s gathering to protest racial injustice even during a pandemic, not by defending the fundamental justice of the act, but by trying to recharacterize justice itself in terms of public health risks.
Such fundamental matters of human life, justice, and dignity must be defended on their own terms. To redefine them simply to accommodate the administrative state’s lingua franca is to accept that modern regulation has no natural place for human dignity or religious faith per se.
VI. The Prospects for Reform
As the preceding discussion illustrates, much of the threat to religious liberty is found in the structure and process of modern administration: regulatory agencies or executive officers acting swiftly and unilaterally, without the moderating influence of legislative checks and balances, pursuing policy-focused missions in predominantly technocratic terms. The Supreme Court’s recent decisions have vindicated religious liberty, and there is good reason to hope that the trend will continue, given the Supreme Court’s current six-justice majority of conservative, originalist justices. But they cannot carry religious liberty by themselves.
Thus, to protect religious liberty will require reformation of the administrative state itself. Fortunately, some reforms are already underway, in both the judicial and executive branches.
In principle, administrative agencies are limited by the laws that Congress enacts. Lacking inherent powers, agencies can only wield the powers that Congress grants them, and they are limited by the terms of those laws. But in practice, Congress has legislated in broad terms. Indeed, its statutes often vest agencies with seemingly boundless discretion.
And amid those statutes, federal courts have tended to afford great deference to agencies’ interpretations of the laws they administer. Seeing agencies as having more political accountability (through the president that oversees them) and more technical expertise, the Supreme Court has for decades directed the lower federal courts to defer to agencies’ reasonable interpretations of statutes, even when in doubt, so long as the agencies are not plainly wrong.
Yet in recent years, the Supreme Court has begun to reconsider this approach. While still affording agencies substantial deference in the more mundane aspects of administration, the court is increasingly resistant to agencies’ most significant assertions of power.
A case decided on the last day of the court’s most recent term exemplified this shift. In a case last year involving climate regulations, West Virginia v. EPA, the justices warned that in matters of the greatest “economic and political significance,” the courts should “hesitate before concluding that Congress meant to confer such authority” on an agency. Instead, the courts should presume that Congress itself—not the agencies—are the government’s lawmakers, and the courts will read the agencies’ powers narrowly to preserve Congress’s power and responsibility. This approach reiterated the court’s decision several months earlier, overturning the Biden administration’s employer vaccine mandate for similar reasons.
This reform will have major ramifications throughout the administrative state, but it could be particularly significant for religious liberty. As we already have seen, the court has given robust protection to religion when it collides with, say, the Obama administration’s overbroad reading of the Affordable Care Act. Yet in those cases, religious liberty needed to be asserted in response to the agency’s broad assertions of policymaking power. In these recent cases, by contrast, the court is imposing restraints on the agencies underlying assertions of power—a narrowing of agency discretion that might itself reduce the opportunity for agencies’ policies to collide with religious activities.
The court’s goal, in increasing its skepticism of agencies and its willingness to constrain their policymaking discretion, is to redirect more of the day’s most significant policy debates back into Congress. “A decision of such magnitude and consequence rests with Congress,” the justices emphasized in the West Virginia climate case. And in Congress, such policies stand a much better chance of being debated and settled in a deliberative process more conducive to religious liberty than the administrative state tends to be.
As noted earlier, the federal regulatory process tends to be carried out in technocratic terms, with legal interpretations, scientific studies, and cost-benefit analyses. And not just by pro-regulatory advocates: the Reagan administration’s institution of a White House Office of Information and Regulatory Affairs, to review the putative costs and benefits of agencies’ regulations, has often provided a significant check on the agencies’ ambitions, at least during more conservative-minded administrations. Yet Scalia’s warning in 1982 was prescient: value judgments, not just technical expertise and number-crunching, are necessary for regulation.
If this is an ironic legacy of the Reagan administration, then even more ironic is the fact that the roots of reform be found, at least initially, in the Biden administration itself. On his first day in office, President Biden issued a memorandum to his new administration’s agencies, directing them to rethink their approach to regulatory analysis, and to “provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
Religious liberty and other constitutional values were noticeably absent from the list, but the Biden administration’s effort to redirect more regulatory attention to considerations of nonquantitative and nontechnocratic values is a good start. It will open the door to many more discussions—if not in the Biden administration, then in its successors—of how the administrative state might also become more protective of religious liberty, among other indispensable things. The next conservative presidential administration will no doubt be inclined to summarily rescind whatever executive orders President Biden issues on matters of regulatory oversight, but it is worth considering the possibility that the Biden administration’s effort to incorporate its own preferred brand of social justice into administration may actually create new opportunities for a broader and better view of social justice—one that also includes religious liberty and other values—in the administrative process.
These judicial and administrative reforms alone will not eliminate the many other burdens that our modern administrative state places on religious liberty, of course. Returning our constitutional system to its genuinely Madisonian approach to republican liberty will require much more fundamental institutional reforms, and much broader and deeper deliberations among the American people as a whole. But there are reasons for hope, and places to start.