The Hydraulic Pressures on Religious Liberty

Do America’s legal guarantees of religious liberty make it easier for legislatures to place a burden on religion in the first place?

Temporary security fencing surrounds the Supreme Court in Washington, D.C., on June 21, 2022.  STEFANI REYNOLDS/AFP via Getty Images.
Temporary security fencing surrounds the Supreme Court in Washington, D.C., on June 21, 2022.  STEFANI REYNOLDS/AFP via Getty Images.
Last Word
Nov. 3 2022
About the author

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. In 2021, he served on the Presidential Commission on the Supreme Court of the United States.

I’m grateful to both Mark Rienzi and Devorah Goldman for their characteristically thoughtful replies. Each of them highlights the limits of my own proposals for reform, and the difficulties of achieving meaningful reform within a system of interrelated governmental and societal institutions.

Rienzi is exactly right: the modern administrative state’s threats to religious liberty cannot be remedied simply through reforms to administrative law. (Rienzi knows this both in practice and in theory—in his work as a constitutional litigator, but also as a constitutional scholar who has written insightfully on religious liberty in the administrative state.) Ultimately religious liberty itself needs to be given its full due.

“When one legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our constitutional system sometimes shift the responsibility to different doctrines.” That is how Justice Neil Gorsuch described the emerging “major-questions doctrine” in a dissenting opinion a few years ago. For Gorsuch, the Supreme Court’s unwillingness to enforce a “nondelegation doctrine”—preventing Congress from enacting statutes that effectively delegate open-ended lawmaking power to administrative agencies—had spurred the lower courts, and now the Supreme Court, to mitigate those overbroad delegations’ problems through other means, especially through the major-questions doctrine.

Rienzi reminds us that something similar may have happened with religious liberty. For decades, as exemplified by Employment Division v. Smith (1990), the court gave a great measure of deference to legislatures, in the hope that the best protection for religious liberty in republican government would come through the legislative process’s checks and balances rather than through the judiciary’s creation of exemptions to generally applicable laws. “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in,” Justice Antonin Scalia wrote for the court in that case, “but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”

Perhaps the major-questions doctrine is a consequence of not just the court’s approach to nondelegation, but also of its approach to doctrines like religious liberty: in other words, after Employment Division v. Smith, the hydraulic pressures of religious liberty helped move the legal system toward a major-questions doctrine.

If so, then we must keep in mind that for major questions and religious liberty, as with hydraulic pressure, the relationship runs both ways: the emergence of the major-questions doctrine alleviates the hydraulic pressures that might otherwise bring about new judicial doctrines on religious liberty per se.

For what it’s worth, I’ve sometimes wondered about similar issues around religious liberty and the administrative state. On the one hand, when agencies or legislatures enact generally applicable laws and regulations that burden the free exercise of religion, I am grateful to the litigators who challenge them in court, and grateful to the courts who declare that the First Amendment or the Religious Freedom Restoration Act require judicial recognition of exemptions to those laws. Yet on the other hand I worry that the courts’ willingness to grant those exemptions actually makes it easier for the legislatures and agencies to enact broad regulatory laws that burden everyone else’s liberties. Ideally, as Justice Scalia recognized in Employment Division v. Smith, a nation that truly values religious liberty would have a legislature that protects those rights through the legislative process itself, with the courts standing ready as a fail-safe. But the availability of that judicial fail-safe might make it easier for legislatures to place a burden on religion in the first place.

To be clear, that is not an argument against judicial protection of religious liberty. Rather, it is a suggestion that the availability of judicial protections makes it more important, not less, that other political and cultural institutions maintain their own hydraulic pressures on the legislative process, for the sake of religious liberty.


Meanwhile, Devorah Goldman rightly emphasizes that the problem is not merely an administrative state but an administrative era, in which our institutions outside of government tend too often toward the same bureaucratic and thus technocratic directions. Or as she put it succinctly: “a broad cultural trend to vest administrators of all sorts—from medicine to higher education—with unwarranted and unearned authority.” That is not to downplay the value of expertise, but rather to recognize that expertise is devalued by its own inflation.

We reap unfathomable benefits from expertise in medicine and the other sciences, and in education, and must take care to preserve these institutions’ capacity for fostering expertise. As Francis Bacon famously wrote, scientific discovery can bring not just intellectual enlightenment but also “the relief of man’s estate.” Yet as Leon Kass teaches, “the humanitarian project for the relief of man’s estate” risks other kinds of dehumanization. Goldman’s response gives some examples, and in so doing reminds us that there are many more.

The challenge then, in both government and in other institutions, is to get the best of both technical expertise and other sources of wisdom, and to know that bureaucracy can be an aid to both but not exclusively so. In the early days of the Covid-19 pandemic, both Yuval Levin and Greg Weiner wrote thoughtfully on these questions in terms of governing institutions. A generation earlier, Herbert Storing wrote of the need for civil servants to understand their responsibilities not simply in binary terms of “technical competence” and “popular will” but in deeper terms of responsibility for recognizing the limits of both, and the need for governing institutions to embody prudence and statesmanship in their pursuit of the true public good. These essays are all worth returning to.

Looking beyond government to our other institutions, Matthew Crawford’s recent books, including Shop Class and Soulcraft and The World Beyond Your Head, remind us of the need to value not just technocratic knowledge but also “tacit knowledge”—the knowledge that humankind earned through experience and not just through abstraction, the knowledge embedded in practices and traditions and not just textbooks. If tacit knowledge is hard to reduce to writing or to defend in purely technocratic terms, then this reflects the limits of technocracy and bureaucracy rather than the value of tacit knowledge itself.

That is yet another reason to protect religious liberty: because religious practices and traditions can embody not just divine wisdom but also tacit knowledge far too deep or too valuable to be reduced to cost-benefit analyses and regulatory impact statements. Indeed, my own effort to reduce them to writing surely does them too little justice.

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