The newly reconstituted federal courts are now poised to transform dramatically the constitutional law of our two religion clauses, one prohibiting laws respecting an establishment of religion and the other guaranteeing the free exercise of religion. The Court isn’t going to turn the United States into a theocracy, but its sympathy to the claims of white evangelicals has changed the law of the religion clauses.
With that in mind, a few of the Supreme Court’s religion clause decisions are worth noting. Montana adopted a program giving parents tax credits to offset the tuition they spent at private schools. The state’s supreme court held that the state constitution prohibited the legislature from making the tax credit available to parents who sent their children to religiously affiliated schools. The U.S. Supreme Court held that this unconstitutionally discriminated against religion. Noteworthy, because this is inches away from a holding that if a state uses tax revenues to fund public schools it has to use those revenues to fund religiously affiliated schools (although the Court’s opinion included a sentence purporting to disclaim this implication).
Another notable decision dealt with a war memorial erected shortly after the end of World War I in Bladensburg, Maryland, a suburb of Washington, DC.. The city continued to maintain the cross, which was a prominent feature on a major commuter route. The Court held that the city could keep the cross up even though it conveyed the distinctively Christian message that the cross symbolizes sacrifice. Why? Because over time the monument had taken on an additional purely historical meaning.
When the Court held that the 1964 Civil Rights Act prohibited employment discrimination against LGBTQ+ people, its opinion carefully noted that the decision left open the possibility that employers who had religious objections to employing such people would have to be exempted from complying with the law.
In our own moment, New York’s rules against mass gatherings during the COVID pandemic imposed quite strict limits on the number of people who could attend religious services indoors, no matter how large the available interior space was. The Court held the restriction unconstitutional because the state allowed an unlimited number of people to shop at retail stores.
Howard Gillman and Erwin Chemerinsky don’t like these developments. They provide an accessible account of the liberal-secularist approach to the religion clauses, identifying two dimensions of interest: separation of religion and government, and the need sometimes to accommodate religious believers within a secular state. This gives them four possibilities for religion clause interpretation.They favor separationism for both clauses, because, they argue, it creates and sustains a secular republic where religion is a private matter.Gillman and Chemerinsky aren’t pure strict separationists, though. They are fine with exempting people with religiously grounded objections to war from military service, for example. They would allow the military and prisons to provide chaplains, and they don’t object to government-provided fire and police protection services for churches (even though today there’s a large private industry from which churches could purchase such services).
Their reasons combine a concession to social reality – in the United States today the courts simply couldn’t get away with a pure separationist program that would require churches to buy police protection from private security companies – with an acknowledgement that sometimes separationism for nonestablishment purposes has to be balanced against accommodation for free exercise ones. Nobody thinks that the U.S. Constitution requires that the Catholic Church has to comply with the statutory ban on employment discrimination based on gender, when it comes to hiring priests – but a pure strict separationist position would hold exactly that.
Gillman and Chemerinsky bow to social and political reality in another way. They don’t object to “politically arranged accommodations” for people who are “directly involved and genuinely complicit in deeply objectionable activities [to them, on religious grounds] such as the case of doctors or nurses who have personal moral objections to abortion.” This looks a lot like an attempt to balance competing interests, though with polemical characterizations such as “genuinely complicit” that place a thumb on the scales – and, not so incidentally, inevitably implicate them in making a fundamentally religious judgment about what counts as sufficient complicity in evil-doing.
Strikingly, though, they reject a balancing analysis of claims by those with religious objections to providing services to or employing LGBTQ+ people, in part because they rightly observe that we wouldn’t do any balancing when someone sought a religious exemption from laws against race discrimination in employment or public accommodations. “Selling flowers or cakes … or providing health insurance to your secular employees is not an exercise of religion that government is obligated to accommodate.” Andrew Koppelman’s book takes on this last question. How should a religiously pluralist liberal society handle the application of general nondiscrimination laws in the LGBTQ+ context, one of the flashpoints of controversy today? (The other is Covid-related restrictions on religious services, a problem that’s likely to disappear within a few months).
Koppelman’s analysis begins with the observation that the race analogy is the most formidable one (“toxic,” as he puts it) to any accommodation for those with religious objections to complying with antidiscrimination law. And he ends by arguing that, in principle, the race analogy isn’t applicable to the problem. The reason? Because of the distinctive history and contemporary prevalence of racism, allowing religion-based accommodations to bans on race discrimination would undermine the bans’ effectiveness.In contrast, he argues, religion-based objections to bans on LGBTQ+ discrimination aren’t widespread enough, so allowing those with such objections to act on their beliefs would still leave us with a widely effective nondiscrimination rule. That’s particularly true, Koppelman argues, because most of the cases that have come up so far arise in urban areas where LGBTQ+ people can readily find bakers and florists who are willing to sell them cakes and flowers. But it’s worth noting that this analysis of social reality might not be right.
A recent study suggests that same-sex couples face something like a ten percent reduction in the availability of wedding related services when suppliers know that they’re allowed to discriminate against such couple. Whether that’s big or small is a matter of perspective. And these days it’s not so easy to find a different job after you’re fired for coming out or transitioning. (Though Koppelman’s book title says “gay rights versus religious liberty” generally, he deals only with public accommodations law, not employment law, so maybe he’d offer a different solution to employment discrimination problems.)
Koppelman proposes what he presents as a principled resolution of the conflict: People who want to discriminate against LGBTQ+ people because of their own religious beliefs can do so as long as they announce that that’s what they’re going to do. A classic example of discrimination is the perhaps apocryphal story about two lesbian moms who brought their daughter to an ice cream store only to be told that the store didn’t serve ice cream to gays, lesbians, and their families. Apparently, a sign on the door, “Gays and lesbians not served here,” would be enough.
To get to this conclusion Koppelman has to address what has become known as the “dignitary” harm associated with anti-LGBTQ+ discrimination. The dignitary harm comes in two forms. One is the insult associated with the denial of service itself. Certainly, if you know that you’re not going to be able to buy an ice cream cone you’re not going to go to the store only to be told in person that you can’t get the cone. I do wonder about the sign itself. There’s a long history here – “No Irish Need Apply” and advertising for homes that said “No Jews or Negroes” – of “mere” statements about discriminatory practices that are themselves insulting.
Beyond that, there’s the dignitary harm of Koppelman’s proposal itself. By that I mean that his compromise tells LGBTQ+ people that their co-citizens don’t care as much about discrimination against them as they do about race discrimination, or that they’ve adopted an interpretation of the U.S. Constitution that treats them in that way, or – perhaps worst of all – that the U.S. Constitution really does treat them in that way.Koppelman basically rules these dignitary harms out of order. Religion should be accommodated “in ways that do not inflict harm on discrete and identifiable third parties.” Only someone who seeks and is refused service or employment suffers that harm, and they can avoid it by reading the notice the business displays.
Both books reviewed here run up against a serious and probably insurmountable problem. They’re about legal doctrine and moral principle. Doctrine and principle have to be tested against reason to make sure that they satisfy requirements of consistency (legal and moral). Maybe, though, the underlying problems are fundamentally intractable.
Maybe our intuitions deal with specific problems and conflict in ways that can’t be reconciled by reason. Strict separationism can’t deal well with legislated accommodations of religious objectors (the problem of conscientious objectors to military service), a principle of accommodation can’t deal well with honestly held (but quite expansive religious notions of what constitutes complicity with evil. And why doesn’t using taxes collected from people who send their children to religiously affiliated schools to pay for public schools discriminate against their religiously motivated choice about how to educate their children?
If someone primarily concerned about getting the right answer to a moral problem can’t do so, that might cause an individual crisis. It’s a much bigger deal when you take these problems into court, where someone has to win and someone has to lose. Gillman and Chemerinsky offer a typical hard-edged doctrine of separationism. The present Supreme Court offers a typically hard-edged doctrine of accommodation. You can jerry-rig solutions – “exceptions” to deal with the problems the principles don’t handle well – but those exceptions are almost by definition indefensible in the principled terms you’ve used to develop the rule. So, you’re going to get a clear principle with fuzzy edges.
Litigants will inevitably charge the jurists with inconsistency at the edges, and insist that the fuzziness be clarified. And jurists committed to doctrinal consistency – which is to say, every judge and legal scholar – will feel the sting of the charge and try to do something about it. Maybe they can’t succeed in coming up with a solution that principled all the way through, with no fuzzy edges. There might be a way out: keep these cases out of court.The Supreme Court began to build the modern law of the religion clauses in the early 1960s. One of its key decisions held that ordinary taxpayers could challenge federal laws as violating the nonestablishment clause. The Court has eroded that decision over the years, but it still remains relatively easy to bring such challenges; if you regularly drive or walk by a display of some religious symbol placed there by a city council, you can raise a nonestablishment challenge.
Ernest Brown, a tax lawyer interested in constitutional law, thought that the Court might have made a mistake in making it easy for ordinary people to bring these challenges. One argument he made is worth retrieving: make it easier to get into court and you make it harder to negotiate compromises in politics. Court decisions have winners and losers. In politics, you win some and you lose some. Courts purport to rely on principles, whereas political compromises are messy and unprincipled. Brown thought that in a religiously pluralist nation, messy compromises were probably better than principled victories and losses.
What would messy compromises on establishment clause issues look like? Here the Court’s decisions probably get us pretty close to a compromise solution. If cities have public monuments with some religious content, they’ll maintain them (or occasionally take them down when they’re associated with other, non-religious controversies), but they won’t put up any new ones. Smaller cities will occasionally engage in prayer practices that secularists find troubling. Fighting this isn’t worth the political cost, but as religious pluralism spreads from big cities to suburbs to small cities it will die off. Christian prayers will continue in small towns and rural areas. We’ve known for many years, though, that in some of those places prayers in public schools are occasionally offered even though the Supreme Court still seems to think them a quintessential nonestablishment violation. No one has gone on a crusade against them.
What about the kinds of free exercise accommodations Koppelman writes about? Here, I think, many who have considered the issue know what the messy unprincipled compromise is: LGBTQ+ people get the protections of ordinary antidiscrimination laws for employment and places of public accommodation; religious objectors get an exemption, probably narrow from one point of view, for some small businesses – where the owner is typically involved on a daily basis interacting with employees and customers, and where the product is what we might call “free speech adjacent” like wedding photography and cake-baking (but not running an ordinary restaurant). Koppelman discusses several variants of this compromise, noting the principled objections each side has to one or another component.
I have to emphasize that these would be messy compromises, not at all principled. The reason is the race analogy that Koppelman tries to get around. He writes, correctly, that no one would accept such a compromise for laws against racial discrimination. But, he argues, given how pervasive race discrimination has been and still is in our society, providing exemptions would in practice undermine the effectiveness of the antidiscrimination law itself. Not so, he says, with respect to religion-based exemptions affecting LGBTQ+ people.Courts – and Koppelman – try to figure out what the rules should be for a nation that is pluralist with respect to both religion and gender-identity, and in particular for a society in which some people have religious objections to complying with nondiscrimination rules about gender-identity. People who look for messy compromises have a different aim. They envision a society in which gender-identity discrimination has been reduced as much as is reasonably possible in a religiously pluralist world. They want to figure out how to get from here to there. Messy, even “rotten” compromises, might be the best way to do that.
If you’re a non-Christian who, for personal reasons, finds yourself stuck in a small town where Christian prayers are said in public schools and at town meetings, the compromise the Court implicitly has allowed isn’t going to help you at all. The same is true for LGBTQ+ people in many places, not only small towns. LGBTQ+ people have to structure their lives as best they can to ensure that they get the services they want – and even then they must live with the reality that many co-citizens don’t see them as quite the same as “the rest of us.”
Still, these messy compromises might be the best way to get from where we are now to a society where religious and gender-identity pluralism are both recognized as fully as possible. It’s worth recalling that antislavery abolitionists before the Civil War entertained the possibility of compromises that would, at least, set slavery on the course to its ultimate disappearance. As we know, the courts didn’t help them work out those compromises. And the war that Lincoln hoped to avoid finally arrived.
It doesn’t seem to me that the courts, with their need to develop principled resolutions of the conflicts brought to them, are likely to be much help on today’s culture-war issues either. Maybe Ernest Brown was right: we should try as hard as we can to keep these issues out of court and keep them in politics, where compromises might eventually lead to peace – or at least to an uneasy truce interrupted by only occasional flare-ups of conflict.
Principled legal rules can’t completely block the courthouse doors. A parent whose taxes support public schools but not her child’s religiously affiliated school, a church fined for violating a COVID restriction, an LGBTQ+ person denied service, a business owner fined for denying the service – all are going to find the doors open. Culture war skirmishes in politics will become culture war battles in the Supreme Court. We’ll have winners and losers rather than messy compromises and uneasy truces that might, eventually, lead to long-term change.
Mark Tushnet is an emeritus professor of law at Harvard Law School.