In the past few years, the Supreme Court has seen a flurry of rulings on issues of religious freedom, concerning whether religious schools can receive federal funds, whether bakers can decline to design cakes for gay weddings, whether a Catholic adoption agency can insist on only placing children with heterosexual couples, and most recently whether states can restrict attendance at houses of worship to prevent the spread of the coronavirus. Underlying all these cases, writes Adam White, is a conflict between two opposing views of religious tolerance. One was summed up by the late Justice Ruth Bader Ginsburg in her final dissent, in the case of the Little Sisters of the Poor—a group of nuns who wished to avoid paying for their employees’ contraception:
Justice Ginsburg had . . . in mind not tolerance for religious beliefs, but tolerance by the religious believers despite their beliefs; not the public’s accommodation of the Little Sisters’ religious obligations, but the Little Sisters’ accommodation of—indeed, assistance of—other people’s claims for subsidized contraceptives. Dissenting from the Court’s seven-justice majority decision, she drew a stark line: . . . protections for religious adherents must not come “at the expense of the rights of third parties.”
White draws a contrast between this view and that of no less a figure than James Madison, who wished to create a republic where religion could flourish:
Madison . . . wrote of religion as a matter of not choice but duty—man’s “duty towards the Creator,” a duty that “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” His goal was not a nation of Unitarians [as envisioned by Thomas Jefferson], but a nation capable of housing many different sects in coexistence with one another. He knew that religious zeal can bring out the best in men but also the worst—“a motive to oppression as well as a restraint from injustice,” he wrote in 1787—and so his goal was first and foremost to create constitutional institutions that would channel and moderate the new country’s many sects and factions.
Thus Madison’s account of religion was part and parcel of his account of republican constitutional government, elaborated most famously in his account of the extended republic in Federalist 10, and in his account of federal separation of powers in Federalist 51.
White contends that maintenance of the Madisonian vision of religious freedom thus involves a restoration of other Madisonian principles: a smaller executive branch restrained by the legislature, a legislature restrained by the constitution, and a limited federal government.