Protecting religious freedom in a polarized society

How can we protect religious freedom effectively, for all faiths, in a polarized society? This section sets forth three keystones for such efforts.

Multiple principles of protection

First, protecting religious freedom for all requires recognizing and countering the many sources of threats to it.


Government hostility and targeting are the most obvious threats. Targeting of Muslims is widespread, but Masterpiece Cakeshop reminds us that hostility' toward conservative Christians is a problem too. The Masterpiece opinion sets forth various principles governing free-exercise challenges to official hostility and discrimination. First, the court can look behind a facially neutral law to challenge discriminatory intent in its adoption or application. That principle was crucial in Church of the Lukumi Babalu Aye v. City of Hialeah f which invalidated ordinances gerrymandered to prohibit animal sacrifices in Santeria religious rituals;

Masterpiece similarly invalidates hostile and unequal enforcement of a facially neutral public-accommodation law.

Second, in seeking evidence of discriminatory intent, the court can consider a wide range of facts. In Masterpiece, the evidence came not only from statements by Colorado commissioners disparaging the baker’s beliefs,[1] but also from the disparate treatment the commission gave Phillips compared with three other bakers who had refused a customer’s request to provide cake displaying a message against same-sex activity. The commission and the Colorado courts held those refusals lawful, but Phillips’ refusal unlawful; the Supreme Court found that the state had been inconsistent in applying arguments to the two situations, which further showed that the state had ‘disfavor[ed] the religious basis of [Phillips’] objection’. The lesson is that courts in should be flexible in seeking evidence of religiously discriminatory intent: it can be inferred in many ways, just as in cases alleging racially discriminatory intent. Masterpiece reaffirms that the Free Exercise Clause ‘bars even “subtle departures from neutrality” on matters of religion’.

Finally, by focusing on the commissioners’ remarks, Masterpiece arguably authorizes showing anti-religious intent through ‘contemporary statements by members of the decision-making body’, a showing that is already authorized in race-discrimination cases. At the very least, such statements are relevant when the officials making them are adjudicators, on whom the law imposes special duties of fair and unbiased decision-making.

Devaluing and unjustified burdens

As already noted, however, threats to religious liberty need not involve pure hostility or targeting against religion. Sometimes the government simply treats free exercise of religion as a relatively weak interest, exempting analogous secular interests from regulation but failing to exempt religious conduct. Such devaluing of religion has been held unconstitutional in several cases - most notably the Third Circuit’s ruling that when a police department with a no-beard rule for officers created an exception to the rule for medical needs, it must also grant

an exception for Muslim officers who wear beards as a religious duty.[2] In other cases, the government is unaware of the practices of a religious minority and adopts a general law that, as applied to that minority, seriously restricts those practices. As already noted, religious freedom restoration acts (RFRAs) provide necessary protection in such cases by requiring the government to offer a strong justification for substantially burdening religion even through a law of ‘general applicability’. In both of these situations, stringent court review is appropriate to protect religious freedom from the multiplicity of potential threats.


Advocates for religious freedom must also be consistent in defending that principle. This applies especially to advocates for conservative Christians, who tend to rely most heavily on religious freedom as an explicit value. If the important public norm of non-discrimination should be tempered for the sake of religious freedom, then so too should other norms, like immigration control or national security, with which conservatives have more sympathy. We should not sacrifice those goals entirely, of course; but we must evaluate assertions of threat carefully, rejecting speculative assertions, and pursue means of combating the threats that are least restrictive of religious conscience.

The importance of consistency was dramatized by Trump v. Hawaii,™ where a 5-4 majority upheld President Trump’s ban on travel from six countries, four of them overwhelmingly Muslim, despite Trump’s blatant statements of antiMuslim hostility that led up to the ban. (He not only called for the temporary ‘total and complete shutdown’ of Muslims entering the country but added many other statements such ‘I think Islam hates us.’) The majority disregarded those statements, although just three weeks earlier in Masterpiece it had pointed to state commissioners’ statements as evidence of unconstitutional hostility. This different treatment provoked angry charges that the conservative justices were hypocrites, charges I would not make. But the majority certainly failed in an important opportunity to give teeth to the basic constitutional principle against official religious bigotry.

The Trump majority held that the president’s statements were irrelevant because under previous cases governing immigration policies, courts do not look behind the terms of a facially neutral policy for which the executive offers a ‘facially legitimate and bona fide reason’.[3] And one indeed can distinguish the cases based on the deference the executive receives concerning immigration and national security - as well as the fact that the Masterpiece statements were made by adjudicators, who must remain scrupulously unbiased.

But the cases could also be distinguished the other way. Trump’s statements were even more clearly indicative of motivation than those in Masterpiece: he alone issued the executive order, while the openly hostile commissioners were just two of the body’s seven members. Moreover, Trump’s statements were especially unambiguous in attacking all people of a religion merely for their membership in it. The Masterpiece statements were bad, but his were worse. His statements, which both post-dated and pre-dated his inauguration, created a strong inference that the ban would not have issued were it not for those anti-Muslim promises and his desire to say he had fulfilled them. That ‘but for’ showing, which suffices in racial-discrimination cases, should also suffice in religious-discrimination cases.

Because of the immigration context, the majority ignored the statements and focused solely on the order’s terms, which did not alone show a clear pattern of anti-Muslim intent (they affected only a few nations, all of which had been subject to restrictions - albeit less severe ones - in the past). The justices disagreed over whether previous immigration cases dictated that approach; I agree with Justice Sotomayor’s dissent that those precedents left room to write an opinion invalidating the ban because of Trump’s uniquely blatant statements evidencing his intent as sole decision-maker. True, such a ruling would have to be narrow, to avoid setting a precedent for serious intrusions on executive authority in future cases.

But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation. The consequences of the resulting ban were serious for those hit by it: thousands of innocent people barred from seeing family members, pursuing educational and religious interactions, and

so forth. The statements also poison the nation’s public culture; in their wake, reports of anti-Muslim vandalism and other crimes spiked.[4]

The consequences are also harmful for religious freedom as a principle. Republicans’ support even for Trump’s most blatant hostility has helped accelerate the perception that they treat religious freedom as nothing more than a tool to use or discard according to what will advance their preferred policy positions. As I have said, progressives show the same selectivity when they dismiss altogether the religious-liberty interests of conservative Christians. Both forms of selectivity reinforce the idea that religious freedom is a policy tool rather than a foundational principle.

There are two sources of comfort. First, earlier versions of the ban (struck down by lower courts) were more stringent than the one the Supreme Court ultimately upheld; constitutional protections did not eliminate the harms to Muslims, but they reduced them. Second, given the majority’s clear emphasis on the immigration context, many courts will likely still act decisively to forbid official hostility against Muslims in domestic matters: hostile local resistance to mosques, officials’ attacks on copies of the Quran, and so forth. The travel ban decision must not be read to undermine that bedrock protection.

Recognizing competing interests

Finally, religious liberty arguments must take account of the interests on the other side in the particular dispute. Even the strongest versions of religious-freedom protection acknowledge boundaries on it set by the interests of other individuals and society. The compelling interest test of RFRA, as explained by the Supreme Court, draws the boundary at conduct that poses ‘some substantial threat to public safety, peace or order’. The government cannot simply assert that such a threat exists; but if it can provide proof, it can regulate. This standard allows for careful examination of the interests on both sides - ‘a balancing test’, although ‘with the thumb on the scale in favor of protecting constitutional rights’.

Limits on religious freedom are right not only in principle but pragmatically. Society will be reluctant to respect religious freedom for a group that does not respect others’ freedoms. This holds further lessons for religious conservatives, who at times have sought nearly unlimited protections against LGBTQ-rights claims. For example, in deep-red Kansas in 2014, Republicans were on the way to passing a highly one-sided bill giving businesses of any size, as well as government employees, an absolute right to refuse to provide goods or services ‘related to’ a same-sex partnership, with no language requiring consideration of whether alternative providers existed.[5] But then a new factor - opposition from major corporations in Kansas - entered the lobbying process, forcing Republicans to table the bill. Subsequently, threats of corporate boycotts blocked measures in Arizona, Georgia, Indiana, and Missouri, even though several were state RFRAs that gave more balanced, qualified protection to religious claims. Unbalanced bills tarnish the cause of religious liberty', giving a boost to the charges that conservatives are using it to undercut gay marriage rather than to protect their own core freedoms.

I have discussed the proper scope of religious-freedom protections at length elsewhere, so I will do it only briefly here. Courts applying the compelling interest test, and legislatures deciding how to craft statutory protections, should consider several factors. The severity’ of the harm clearly matters; so does the extent to which it is immediate rather than remote, or focused on a few individuals rather than spread across the general population. It also matters how close the activity' in question is to the core of religion: religious congregations, educational and social service organizations, or religious tenets exercised by commercial business owners or government employees. Protection should be near absolute in the first category, but much narrower in the last.

With respect to conflicts with LGBTQ rights specifically, the religious-freedom lines will be drawn heavily by federal courts. Now that the Supreme Court has held that LGBTQ employment rights are covered by Title VII’s prohibition on sex discrimination (a ruling likely to extend to other non-discrimination laws), religious conservatives have little leverage to secure specific statutory exemptions. They may rely on the protections of RFRA, with its compelling-interest test for defining the scope of exemptions, or potentially on a similar constitutional standard if the Court restores mandatory exemptions under the Free Exercise Clause (as it is considering doing).

Applying such standards to LGBTQ non-discrimination cases, religious exemptions in the for-profit sphere should be confined to individuals and small businesses who would have to provide personal services - photography, custom floral or cake design, marriage counseling - directly to facilitate marriages or relationships to which they conscientiously object, when other providers are readily available. These objectors plausibly feel the most personal responsibility for their actions, and to impose liability that may drive them from their livelihood is a serious burden. Such limited protection means that same-sex couples will very occasionally be referred elsewhere and feel insulted and demeaned. That harm should not be dismissed; but when alternative providers are readily available, it does not equal the harm to the religious objector, who would have to surrender permanently either her conscience or her occupation. A narrow exception to gayrights laws in this context holds the best hope of protecting both sides.

The arguments for such a carefully defined exception do not justify exemption for much larger businesses or for those that have market power (for example, those in lightly populated areas with only one or two providers).[6] Nor should we exempt the objector who refuses service in a context that has no real nexus to the behavior she opposes: the restaurant refusing to provide a table to gay customers differs significantly from the wedding photographer who objects to using her art to celebrate a ceremony she does not consider a marriage. These distinctions are worth making if a jurisdiction wants to value both religious freedom and same-sex family equality.

By contrast, educational or other charitable organizations with a religious purpose or affiliation merit stronger protection. Nonprofits that identify themselves as religiously connected are generally closer to the core of religious exercise than are for-profit businesses selling ordinary secular products. By their nature, these service organizations carry out the mission of a religious community, and service to others lies near the core of most religions. Moreover, while a refusal in the for-profit marketplace may be unexpected, that consideration is much weaker when employees or clients deal with a charity that identifies itself as religious. If clients have notice that the nonprofit organization may apply religious standards,

‘Christian bigots’ and ‘Muslim terrorists’ 187 then the organization should be protected unless it has such market power that alternatives would be unavailable.


Religious liberty should temper our disputes, not replicate and reinforce them. Conservative Christians need not agree with Islam, just as progressives need not agree with conservative Christians. But both sides must reaffirm religious liberty for the thought they hate, or else religious liberty will lose credibility as a principled source of protection for anyone.

11 Managing religious diversity in Europe

  • [1] See supra notes 12-15 and accompanying text. 2 Masterpiece Cakeshop At 1730-1731. 3 Arlington Heights v. Metro Housing Development Corp., 429 U.S. 252,266-268 (1977) (listing various categories of‘circumstantial and direct evidence of intent’). 4 Masterpiece Cakeshop at 1731 (quoting Lukumi, 508 U.S. at 534 (further quotation omitted)). 5 Arlington Heights at 268. 6 Masterpiece Cakeshop at 1730. Although the Court limited its discussion to statements in adjudicatory settings, arguably the ruling extends to legislative or executive settings as well. Four justices in Masterpiece (Kagan and Breyer, JJ., concurring, and Ginsburg and Sotomayor, JJ., dissenting) did not appear to adopt the distinction between adjudicatory and legislative contexts). And Justice Kennedy had also considered hostile statements by legislators in Lukumi, 508 U.S. at 540-542 (Kennedy, J., joined by Stevens, J.).
  • [2] Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999). 2 See supra notes 12-15 and accompanying text. 3 Trump v. Hawaii at 2392. 4 Trumpv. Hawaii at 2417-2418 and 2435-2438 (Sotomayor, J., dissenting) (both cataloging Trump’s statements). 5 See, e.g., Ilya Somin, ‘The Supreme Court’s Indefensible Double Standard in the Travel-Ban Case and Masterpiece Cakeshop’, Vox, 21 June 2018. 6 The Court also failed to give equality in religious freedom proper weight when it vacated a stay of execution for a Muslim prisoner who had sought to have an imam present in the execution chamber as he died, given that Christian prisoners could have the prison chaplain, a Christian minister, present. Dunn 1». Ray, 2019 WL 488293 (Mem.) (7 February 2019). As Justice Kagan argued in dissent, the state’s interests in finality of sentence and security of prisons were both weak: Ray had filed a claim soon after he learned of the discrimination,
  • [3] Trump v. Hawaii at 2419 (quoting Kleindienst i>. Mandel, 408 U.S. 753, 769 (1972)). 2 Masterpiece Cakeshop at 1731. 3 Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights, 429 U.S. 252; Hunter n Underwood, 471 U.S. 222 (1985). 4 Trump v. Hawaii at 2420-2421. 5 Trump v. Hawaii At 2440 n.5 (Sotomayor, J., dissenting).
  • [4] See, e.g., Kelly Weill, ‘Hate Crimes Spiked after Trump’s Anti-Muslim Tweets, Study Finds’, The Daily Beast, 14 May 2018 (reporting study from University of Warwick). 2 See supra note 24 and accompanying text. 3 See, e.g., Islamic Soc’y of Basking Ridge, 226 F. Supp. 3d 320; United States v. Rutherford County, 2012 WL 2930076. 4 See, e.g., Harrisv. Escamilla, 2018 WL 2355123 (9th Cir., 24 May 2018) (reversing summary judgment for prison guard who allegedly intentionally stomped on and desecrated inmate’s Quran). 5 Wisconsin v. Toder, 406 U.S. 205, 230 (1972) (quoting Sherbert v. Verner, 374 U.S. 398, 403(1963)). 6 Toder at 221; see Holt v. Hobbs, 135 S. Ct. 853, 866 (2015) (‘holding that even in the sensitive context of prison security, courts must not accept “prisons officials” mere say-so’). 7 Douglas Laycock, ‘The Religious Exemptions Debate’, (2009) 11 Rutgers Journal of Law & Religion 151-152.
  • [5] House Bill No. 2453, 2 Editorial, ‘House Didn’t Heed Warnings on HB 2453’, Wichita Eagle, 19 February 2014. 3 Libby Hill, ‘Some Call It Religious Freedom; Others Call It Anti-Gay. Here’s a Look at the Battle in Some States’, Los Angeles Times, April 2016. 4 Berg, supra note 76; Thomas C. Berg, ‘Religious Accommodation in the Welfare State’, (2015) 38 Harvard Journal of Law & Gender 130-142. 5 Bostock v. Clayton County, Ga., 140 S. Ct.___, 2020 WL 3146686 (15 lune 2020). 6 Bostock at 17 (noting that RFRA ‘might supersede Title VII’s commands in appropriate case’); Fulton v. City of Philadelphia, cert, granted, 140 S. Ct. 1104 (24 February 2020) (presenting question whether Employment Division v. Smith should be revisited).
  • [6] Mississippi also passed an unbalanced law, in 2015. It allowed any closely held business to refuse to provide services to a same-sex wedding and to require that transgender employees use the bathroom of their biological sex at birth - regardless of the business’s size or the effect its refusals would have on employees or on same-sex couples’ access to services. Miss. HB 1523, §§ 5, 6, A federal district court invalidated the law as an establishment of religion because of the disproportionate harms to others it allowed, although the court of appeals reversed on standing grounds. Barber v. Bryant, 193 F. Supp. 3d 677, 721 (S.D. Miss. 2016), rev’d and dismissed, 860 F.3d at 345 (Sth Cir. 2017). 2 See, e.g., Micah Schwartzman, Richard Schragger, and Nelson Tebbe, 'Hobby Lobby and the Establishment Clause, Part III: Reconciling Amor and Cutter’, Balkinization, 9 December 2013, (Noting 'the reasonable expectation that employees who work for churches and religious-affiliated non-profits understand that their employers are focused on advancing a religious mission.’)
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