Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise and not so much freedom of conscience or other formulations of broader ideological protections? Why, for example, does an institution like the Hosanna-Tabor Evangelical Lutheran Church and School get exempted from employment-discrimination laws but not the Cato Institute (which is just as opposed to government incursions on how it wants to operate)?
The answers are complicated, although impingements on religious liberty increasingly have the same cause as impingements on secular liberty: an overweening state whose regulatory tentacles reach more and more into that part of the public sphere that is non-governmental. The government, especially a federal government liable to be insensitive to state and local contexts, foments clashes of values where none existed previously. At the same time, the culture has shifted in an illiberal way such that certain views and behaviors—which don’t otherwise threaten public order or the state—have to be stamped out with the force of law, rather than tolerated or even celebrated.
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