For a generation or more, the lines of debate around religious liberty and religion in the public square were relatively clear. As with other culture war issues, religious conservatives tended to be majoritarians and small-d democrats, supporting the rights of legislatures and town councils and school boards to make decisions about issues ranging from creches on greens to school prayer to the disbursement of education dollars to religious schools without interference from the judicial branch. And there was an assumption among many observers — and not only on the religious right — that on matters related to believers’ involvement in civic life, the courts were a kind of vanguard force for secularism, whose efforts would tend to collide with public sentiment and lead to conflict with the democratic branches of government.
The reality was always a little more complicated than this, but the basic binary of secular jurists versus religion-friendly legislators had a lot of explanatory power. Now, though, it pretty clearly no longer obtains: Today’s decision in Burwell v. Hobby Lobby, in which the Supreme Court ruled 5-4 that the Obama White House’s mandate requiring employers to pay for the morning-after pill, sterilization and contraception unduly burdened the religious liberty of Hobby Lobby’s Christian owners, is the latest evidence that we inhabit a very different political and jurisprudential landscape on these issues than we did from the 1960s (or 1940s, even) through the 1990s.
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