CHAPTER NINE

Religious Freedom

Those hoping that the RFRA would mark an end to the culture wars were bound to be disappointed. There was a certain naivete on the part of many of the act’s boosters, a longing for a consensual order that had passed. It soon became apparent that the freedom being restored was an essentially contested concept, in keeping with the wider political disagreements that beset American life. In the case of religious freedom, those disagreements had been long-standing. Going back to the Jehovah’s Witnesses cases, the courts, politicians, and citizens had worked to define and limit it. The resulting jurisprudence had created divisions over how to protect individual conscience while simultaneously upholding a political order that did not privilege any one religion.

In the Smith decision part of the dilemma was the way that pluralism and conscience seemed to work against secularism. In the early development of the American secular order, pluralism had been a way of decentering the demands of Christianity. The normative embrace of diversity rejected Christian privilege and power in a variety of domains, usually through privatizing difference and religious belief. But the breakdown of public–private as a stable conceptual distinction shifted the configuration of terms. Now, pluralism could be used to demand the public recognition of private religious belief via the language of religious freedom.

That would be especially useful for the Christian Right. In May 1994, about a year after Clinton signed the RFRA into law, a group of conservative theologians and leaders published a carefully crafted statement entitled “Evangelicals and Catholics Together” (ECT). It noted that the past several decades had seen the convergence of and cooperation between the two groups as they fought, in the words of the statement, “for the truth that politics, law, and culture must be secured by moral truth.” “More specifically,” the statement continued, “we contend together for religious freedom.”¹

To the signers of the statement, contending for their shared liberty meant not merely the right of individual belief or private religious expression. It also required the recognition that religious groups had a responsibility to order civil society. Their duty of public ordering relied on the concept of morality, a shared domain that ought to be recognized by everyone. “We reject the notion that this constitutes a partisan ‘religious agenda’ in American politics,” they wrote. “Rather, this is a set of directions oriented to the common good and discussable on the basis of public reason. While our sense of civic responsibility is informed and motivated by Christian faith, our intention is to elevate the level of political and moral discourse in a manner that excludes no one and invites the participation of all people of good will.”²

Many liberal critics were not so sure. But given the way that old categories seemed to be shifting, their proper response was not entirely clear. Among those seeking to understand the changing dynamic—eager to clear up the definitional confusion—was the philosopher John Rawls, a towering figure in Anglo-American political thought whose influence went far beyond academia. When the ECT statement invoked “public reason,” it used a Rawlsian concept to its own ends.

Rawls had long worried about the challenge that religious disagreement posed to the survival of constitutional democracy. It is not too much of a generalization to say that his entire career as a political theorist had been influenced by such a concern. In his early work he had sought to circumvent religious disagreement and the challenge of pluralism by finding some universal reasoning procedure that could be accepted by all parties in a political dispute. His goal was to avoid the divisiveness of religious thought that he associated with the Protestant Reformation, the Wars of Religion, and the Catholic Counter-Reformation. The search for an alternative language that subverted religious disagreement reached its fullest expression in 1971 when Rawls published A Theory of Justice, his first masterwork.³

By the 1980s and with the advance of the Religious Right, Rawls had begun to reconsider whether such a universal reasoning procedure was feasible in a democracy, whether it was possible to circumvent the language emerging from disparate and often antagonistic traditions in the way he had attempted. It was not that he departed from his earlier position. He was simply forced to admit that his philosophical and ethical commitments amounted to only one theory among many in American society. He recognized that his search for, in William A. Galston’s words, a “transcultural, truth-based political evaluation” would not have the effect he hoped for in any actual, living democracy. There was an ongoing, inescapable amount of moral, ethical, and religious disagreement that necessarily fed into the political process.⁴

So as he watched American debate become polarized by moral and religious questions, and as he observed the culture wars driving American democratic practice, Rawls began to ask even more foundational questions, ones that went to the heart of democratic theory. How, he wondered, did someone accept a law as legitimate and authoritative in a society? Under what conditions would they follow a law, even when they thought that law was unjust? How did a political order maintain legitimacy in the face of deep difference, given that laws were always going to be opposed by somebody? How did that political order command allegiance?

To parse the problem, Rawls made a series of distinctions that implicitly criticized both the New Left of the 1960s and the Religious Right in the 1980s. The most important distinction was between what he called a comprehensive doctrine and a political doctrine. A comprehensive doctrine was often a religious, moral, or philosophical persuasion that offered a deep view of human life. It was personal, necessarily. A political doctrine was something else. Rawls believed that the personal was not ever political. In a political democracy, Rawls said, people will have many kinds of comprehensive doctrines that necessarily contradict one another. To place one version of truth over others within a political system would involve an intolerable level of coercion. So a political doctrine could not be justified solely by one’s comprehensive views, Christian or otherwise, if the political system was to be liberal in the broad sense of the word.⁵

This much was obvious, Rawls thought, or should have been, but categories had become confused in the years since the 1960s. The identitarian politics of the New Left and the tendency of its successors to conflate the personal and political had overlooked how such a conflation was dangerous to the political order in a diverse society. Public political ordering required a broader foundation than comprehensive personal views. It was not that such views were irrelevant, but that they were not enough on their own. In a properly functioning democracy, Rawls decided, public policy ought to rely on what he called an overlapping consensus between groups that held fundamentally rival views but who could agree on specific policy proposals. Rawls was careful to say that the overlapping consensus did not extend very far. It covered only what he called “the domain of the political,” which was, again, a tightly circumscribed arena that affected all citizens in a liberal constitutional polity.⁶

The key task of the democratic process was to find an overlapping consensus. In Rawls’s explanation, it emerged through a process of uncovering. The idea was that there was some kind of latent agreement in a society if that society was in any way functional but that it must be realized and brought into effect through political deliberation. If the perpetuation of their common political project was to be realized, people needed to adopt a form of political self-discipline that avoided their comprehensive doctrines while seeking to meet one another halfway. They ought to rely on what he called “public reason.”⁷

In making an argument against abortion, for example, a person ought not quote from the Bible as though that settled the question because not all members of the society believed that the Bible was the word of God or understood the sacred status of the Bible in the same way or even interpreted the Bible in similar fashion. Instead, a person needed to use reasoning that would be recognized by other members of the public who shared political space but not similar religious views. The use of public reason recognized the shared nature of the political project by emphasizing the commitments of citizens in a democracy and by avoiding comprehensive doctrines likely to drive disagreement.

The question was whether or not the signers of the ECT statement, in spite of their claims to do so, abided by the rules of public reason. When they declared, “Politics, law, and culture must be secured by moral truth,” they asserted their belief in an absolute set of moral rules that bound all members of society. The rules were operable, or ought to be, on everyone regardless of how many people subscribed to the view of moral truth put forward by conservative Christians.⁸

But at the same time they made gestures to public reason by using the constitutional language of religious freedom. That language had been central, if somewhat problematic, to the emergence of American secularism, and it had likewise been part of the conservative Christian strategy of preemption since the civil rights movement. By promoting their own religious freedom rather than, say, the absolute truth of Christianity, they were in some sense comporting to the secular rules of public debate.

As Rawls watched that debate unfold through the 1990s he came to the conclusion that the notion of public reason needed a greater degree of clarification than he had previously offered. The “public” part of public reason had, in spite of Rawls’s efforts, continued to crumble. And the ECT statement revealed that many private religious questions did seem to have political import because something like religious freedom was a political concept that related to a person’s comprehensive views.

After being criticized by religious thinkers, Rawls modified his theory. He announced that political discussion could originate in a citizen’s foundational religious commitments. He accepted even that those commitments could be expressed in public discussion. “Any comprehensive doctrine, religious or secular, can be introduced into any political argument at any time,” he later said, “but I argue that people who do this should also present what they believe are the public reasons for their argument.” To do so would be to acknowledge that the political relation was fundamentally not one of agonistic combat but “one of civic friendship.” If a person was unable to articulate his or her position in terms of public reason, that indicated the sectarian and therefore illegitimate nature of his or her political project.⁹

Still, he faced deep levels of resistance to his formulations, which exposed the wider difficulty of uniting around a common political liberalism in the postsixties era. The breakdown of categories made even one-on-one conversation hard. Shortly after Rawls began to modify his position, the Catholic philosopher Bernard Prusak, in an interview in Commonweal, questioned him about his recent thinking. Prusak’s main point was that he understood civic friendship differently than Rawls. Prusak’s conception was based on a Catholic notion of the common good. It was fundamentally a religious idea. That idea could not be bracketed in quite the way that Rawls seemed to want. He pressed Rawls on his terms.

“How do you think, in your work, the idea of the common good is revised?” Prusak wondered. “Is there still a common good? How would we speak of it in a liberal constitutional democracy where pluralism is a fact? Is it thrown out, or is it reconceived?”

Rawls responded that the common good in a liberal democracy consisted of “the means provided to assure that people can make use of their liberties.” That was what made it liberal; it was focused on the individual.

“So the common good would be the good that is common to each citizen, each citizen’s good, rather than an overarching good?”

Prusak was, in effect, contending that Rawls had smuggled a conception of the secular, autonomous individual into the rules of debate that he was offering. Rawls was shaping the debate through his rules. But Rawls refused to concede that his project was simply about maximizing liberal, secular autonomy. All the individuals in a polity had a common project that required one another for their individual and collective well-being.

“In my language,” Rawls responded, “they’re striving toward one single end, the end of justice for all citizens.”¹⁰

While Rawls sought to clarify the debate and his own position, other thinkers began to pick up the problem by different handles. In 1989, at the high point of the culture wars, the pragmatist philosopher Richard Rorty published a collection of essays that tried to break through the dilemmas of solidarity in the postsixties era. Rorty’s perspective as a philosopher, like that of Rawls, made him uniquely attuned to the role of language in these disputes. But by the late eighties he had come to the conclusion that the way analytic philosophers used language was flawed. Rorty no longer believed that offering a proper set of distinctions or adequately defining one’s terms, as Rawls sought to do, would allow a person to arrive at clear thought that could solve the debate. Language just did not work that way, Rorty concluded.

Instead, human beings drew on vocabularies that were unique to time and place. These collections of words expressed certain sensibilities, values, and political projects. The American political tradition offered one such vocabulary. It came down to the present as a result of past use, and to the extent that it continued to be drawn upon it was because it continued to be useful. But there were always tensions in any vocabulary because words are inevitably imprecise, metaphorical at bottom, and definable only by reference to other words. That was not a problem for Rorty, as it was for Rawls.

The flexibility of language and its slipperiness in debate actually created an opportunity, Rorty thought, not for clarification but for political mobilization. The tensions in the American political order opened a space for action through rearrangement and negotiation of inherited concepts. One had to ask what kind of state of affairs a vocabulary helped to bring about. For instance, what did a focus on religious freedom do when deciding a political question? Answering that query required, in turn, considering other possible words, concepts, and categories in an extending exercise of compare and contrast. Rather than religious freedom, for example, what might a focus on equal treatment lead to? Linguistic analysis became not a question of definition but of strategy. “Does our use of these words,” Rorty asked hypothetically, “get in the way of our use of those other words?” If so, some words or concepts had to go. Again, the point of asking the question was not to arrive at logical or definitional consistency. The goal was to find words that would create solidarity around a common political purpose.¹¹

Although Rorty dispensed his lessons as an avowed member of the Left, it was the conservatives who put his ideas into practice with greatest effect. They exploited the tensions within the secular order and the conceptual confusion emerging out of sixties to stunning effect. Their appropriation of formerly secular words and their coining of ostensibly secular phrases allowed them to achieve a set of religious ends they sometimes forthrightly acknowledged and sometimes did not. And they slid in and out of alternate vocabularies as it suited their political purposes.

The RFRA soon became central to their efforts. The ECT statement had rightly pointed to religious freedom as a foundational interest of both Protestants and Catholics. Leaders within the two groups used the secular language of religious freedom to overcome their sectarian animosities and to organize for political success.

Their mobilization became more urgent at the end of the Clinton presidency, as gay rights activists also began to have some successes. In the aftermath of the Georgia sodomy case, the focus of gay activists had shifted to finding other ways of recognizing gay and lesbian civil liberties. By 1993, when Clinton signed the RFRA, some municipalities and corporations had responded to activists’ pressure by creating domestic partner benefits and other arrangements that acknowledged same-sex unions. The time seemed ripe for another legal challenge. Casting about for a test vehicle, the gay and lesbian civil rights organization Lambda Legal heard about an incident in Texas involving a man named John Geddes Lawrence Jr.

Both Lawrence and his friend Tyron Garner had been arrested after the police were called to Lawrence’s apartment. Lawrence was white, Garner was black. The police alleged that they found the pair having sex. Lawrence and Garner were charged and pled no contest to a misdemeanor violation of the state’s antisodomy law. Lawrence later said that the two were not having sex and had never had sex. They were seated fifteen feet apart from one another when the police came in. The sexual and racial dynamics of the incident, combined with the potential of police misconduct, demonstrated how sodomy law intersected with other cultural disagreements. The episode had all the elements of a good appellate case.¹²

When it finally got to the Supreme Court in March 2003 Christian conservatives grew nervous. During oral argument Antonin Scalia asked Lawrence’s attorney, Paul M. Smith, how “flagpole sitting” could be considered a fundamental right? After all, condemnation of homosexual behavior had grown out of what Scalia characterized as “a 200-year tradition of a certain type of law” that allowed the state to protect a public morality. Other conservatives on the court joined Scalia in pressing Smith on what exactly had changed over the past two hundred years.

Obviously, much had changed over that time, not least the constitutional revolution of the Fourteenth Amendment and the court’s determination that certain parts of the Bill of Rights were incorporated into it. The moral condemnation toward gay sex had also begun to change. Smith decided not to lecture the justices on the law. But he did tell the conservatives that their history was selective. The case was not about public morality but about protecting, in his words, “the privacy of couples . . . in their home.” The fact that three-quarters of states no longer had sodomy laws implied that something had shifted. The vast majority of states had concluded that prohibitions against specific kinds of sex were, as Smith put it, “not consistent with our basic American values about the relationship between the individual and the State.”

“Well, it depends on what you mean by our basic American values,” Scalia responded.¹³

Conservatives were soon disappointed. In a 6–3 decision Anthony Kennedy struck down sodomy laws. The ruling advanced the religious privatization and the pluralization of moral values that the court had begun in Griswold and that had, in recent years, seemingly broken down. Kennedy ignored recent history and summarized what he saw as the long-term direction of the court. The majority had come to a general recognition of the right of the individual to be shielded from governmental intrusion in his or her life choices. He acknowledged that many people objected to gay sex on religious grounds, as was their right. But he noted that their beliefs about the immorality of homosexuality did not enable them to regulate the conduct of others through the coercive apparatus of the state. Antisodomy laws were, therefore, unconstitutional and should have been struck down when the court last ruled on the issue.¹⁴

Scalia, writing in a dissent joined by William H. Rehnquist and Clarence Thomas, was confounded. The court’s decision, he wrote, opened the door to full-fledged moral licentiousness. It called into question, in his words, “laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” If the court followed its own directive, American society was set for a massive upheaval. But he took some comfort in the idea that if the court was going to overrule its own precedents so quickly, as it did in Lawrence, then maybe Roe v. Wade would be next. And unlike the reversal on gay sex, he pointed out, a dismantling of Roe would simply revert to “the regime that existed for centuries before 1973.”¹⁵

Scalia had reason to be disquieted. The ball seemed to be rolling toward the ultimate recognition of gay rights. Within a few months the Massachusetts Supreme Court declared that marriage discrimination on the basis of sexual orientation violated the state’s promise of equality. Gay marriage became legal in the state. Other states followed.¹⁶

After the court’s decision and the subsequent victories in state courts, gay rights joined abortion as one of the central issues in the culture wars. Christian conservatives were at first unsure how to respond, but they quickly gathered themselves, shifted their rhetoric, and mobilized the full language of Christian power and triumphalism. Sandy Rios, the president of Concerned Women for America, announced on her radio program that she needed her millions of listeners to get involved in the effort to fight gay rights. “We will equip you, we’ll help you organize to fight back on this issue,” she said. “The time is now. If you don’t do something about this, then you cannot in 20 years—when you see the American public disintegrating and you see our enemies overtaking us because we have no moral will—you remember that you did nothing.”¹⁷

Christian Right activists succeeded in getting constitutional amendments prohibiting same-sex marriage on the ballots of many states. Others began to drive their base to voting, if not activism, using gay rights as a whip. James Dobson, the head of Focus on the Family, sent out an email to his 2.5 million subscribers explaining the stakes. “The homosexual activist movement is poised to administer a devastating and potentially fatal blow to the traditional family,” he wrote. “And sadly, very few Christians in positions of responsibility are willing to use their influence to save it.”¹⁸

The effort was enormously vitalizing. Richard Land, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, told the New York Times, “I have never seen anything that has energized and provoked our grassroots like this issue, including Roe v. Wade.”¹⁹

Their activism came out of a sense of betrayal. Up to that point many Christian conservatives had been feeling pretty good about where they were. Since George W. Bush’s election to the presidency in 2000 they had experienced a solicitousness toward their priorities that was unparalleled, even under Reagan. Bush was one of their own, an avowed evangelical. He ran in 2000 on a platform of compassionate conservatism, an idea put forward by the writer Marvin Olasky, who wanted to bring back a pre–New Deal form of welfare to the United States. Olasky had persuaded then-governor Bush to roll back Texas’s regulatory oversight of what he called faith-based groups, a seemingly neutral and descriptive concept encompassing many private organizations with charity missions, and to redirect existing welfare monies to those programs after the limits were removed. The point was to help the poor through private or nonprofit charities supported by public money.²⁰

En route to the presidency, Bush promised to broaden the initiative by apportioning eight billion dollars in federal funds for faith-based programs to fight poverty. The emphasis was on the public good of the programs delivered, not on the financial support of private groups. But on the ground many of the groups, who were overwhelmingly Christian and conservative, focused as much on promoting faith as on delivering welfare. The New York Times had no difficulty finding examples of taxpayer money being used for explicitly religious activities that had hardly any welfare component. Bill Stanczykiewicz, who worked directly under Bush’s top domestic advisor for the campaign, admitted he was not overly scrupulous about making sure that public money had public purposes. “I encourage them to play a shell game,” he told the New York Times. The groups accepted the cash and held faith rallies or proselytizing missions or whatever. Money was fungible, so it was not easily kept from an organization’s more sectarian activities. The program seemed to offer a path to renewed Christian relevance, if not power, and until 2003 it appeared to be working.²¹

But after the court’s ruling in Lawrence, many Christian conservatives began to feel a creeping sense of insecurity. Their alliance with Bush had not saved them from the ruling. The president tried to reassure them of his support without coming across as an antigay bigot. He was quickly pushed into it anyhow. Antigay Christian activists began to float the idea of a federal constitutional amendment limiting marriage to heterosexual unions. Bush announced in response that he was committed to protecting “the sanctity of marriage.”

Diane Sawyer of ABC News asked him what exactly that meant. Did it mean that he would support the federal marriage amendment?

“If necessary, I will support a constitutional amendment which would honor marriage between a man and a woman, codify that,” he responded. But he also seemed to open the door for same-sex civil unions, if some states wanted to go that route.²²

His calculations further energized the conservative base, driving them to the polls. On election day Bush triumphed largely owing to the votes of the Christian Right. Seventy-eight percent of evangelicals and 52 percent of Catholics voted for him. The Economist estimated that 3.5 million more evangelicals voted in 2004 than in 2000. Karl Rove, the president’s chief political advisor, announced that moral values had carried Bush to victory, and he promised that politicians ignored the interests of Christian voters at their peril.²³

But Bush’s reelection did nothing to redress the larger cultural shifts that were occurring and that conservative Christian leaders had begun to sense. Pollsters had already begun to take notice of what they called the God gap, the overwhelming tendency of the most religious to support Republicans rather than Democrats. That tendency had resulted in electoral triumph in 2004. But there was a corollary that Rove’s focus on religious Republicans tended to obscure: a sizable and growing number of the least religious people voted Democratic. In some sense it was a continuation of a much longer development that had just begun to accelerate and that many observers initially missed.

Seen from that perspective, the demographic trend was ominous for the long-term success of the Christian Right. By 2004 the number of white Christians in the United States had begun to plummet. The decline was considerable among liberal Christians, but the institutional rot had begun to hit conservative and evangelical groups as well. As the number of white Christians dropped, the nation saw a dramatic rise in the “nones,” those who claimed either no religion or no specific denominational affiliation. In 2007, 15 percent of Americans reported no religion. By 2012 one-fifth of American adults and one-third of those under thirty declared no religion. In the three years between 2012 and 2015 the numbers rose several points further. Put in real numbers, between 2012 and 2015 around 7.5 million people abandoned their religious affiliation. Their rejection was connected to other shifts, equally profound. The number of Americans who revealed they rarely, if ever, attended religious services and who said they rarely, if ever, prayed rose dramatically. Other markers of religiosity likewise went down.²⁴

These changes were beginning to be apparent in 2004, and they implied problems for the Religious Right. People who attended church least regularly, professed the loosest religious commitments, and displayed the lowest levels of religiosity as measured by social scientists were the most likely to vote Democratic. And their numbers were growing rapidly, whereas the number of those with the highest levels of religiosity, who were most likely to vote Republican, was shrinking with equal speed.²⁵

Faced with the dawning realization of their cultural and political weakness, conservative Christians saw their project skid toward crisis even after the 2004 electoral victory. Their sense of catastrophe grew in 2006, when Democrats swept into a majority in the Senate and the House. Up until that point conservative religious leaders continued to believe, deep down, that they possessed majority status. Jerry Falwell called his organization the Moral Majority for a reason. Conservatives expected to mobilize their numbers to achieve electoral success and to overcome the subversion of a secularist minority in the courts. But the rapid acceptance of gay rights, the growth of non-Christian and anti-Christian sentiment, and their loss in 2006 presaged that, in the long term, their ability to succeed electorally was in doubt.

In response the Christian Right shifted the rhetoric. They continued to complain about the triumph of secular values while falling back on the language of religious freedom. When confronted with regulations that required adoption agencies to place children with gay and lesbian couples or when facing employment and disability regulations that required agencies to refrain from discriminating against such couples, conservative Christians promoted religious exemption from otherwise applicable law. Rather than assuming the power to shape public morality, as they had done in the past, religious conservatives demanded the space to practice their faith within an increasingly wide range of activities.²⁶

Looked at in one way, this rhetorical shift was a concession to political trends. But looked at in another way, it was an adjustment in tactics to achieve the same ends they always sought. Christian conservatives had already laid the statutory groundwork for the move with the passage of the religious freedom acts at the state and federal levels. They also began to lobby their representatives to accommodate their religious-freedom claims in more specific ways. A 2006 New York Times report found that in the United States religious organizations enjoyed widespread exemptions from normally applicable rules. They ran the gamut from tax law to disability law, employment law, regulations of childcare centers, pension law, and land-use regulations. Legislators created the exemptions, sometimes through anonymous amendments of unrelated legislation. The strategy relied on an invocation of religious freedom to opt out of rules that undermined religious autonomy.²⁷

But there was an ambivalence in conservative Christian efforts that the rhetoric of religious freedom tended to obscure. The groups did not want just exemption from otherwise applicable laws. They sought a way to live out their faith without the disruption of alternative perspectives. A pluralized social morality had long required the privatization of a person’s fully orbed religious ideal. It demanded living in an earthly frame in which a person’s life took acknowledgment and even tacit acceptance of alternative views rather than living one’s life entirely in a biblical or heavenly frame, which relied fully upon an individual’s religious belief. The demand to live in an earthly frame ran against the desire of Christian conservatives who wanted to live their lives with an unbroken religious integrity, as they understood it. It was impossible to do that entirely in a secular political order, which is why even as they began to speak the language of pluralism and of freedom they continued to demand public recognition of their moral and religious position.

Conservative Christians soon found ballast for their troubled project. In the early aughts, just as the Religious Right skidded toward crisis, a group of antiliberal writers began to interrogate secularism as a political, intellectual, and moral value. Soon conservative Christians and antisecularist academics began to come together in a variety of institutional channels—often supported by private charitable foundations—which helped set the terms of public debate.

In 2007, as the Democratic majority was settling into office, the Catholic philosopher Charles Taylor published what promised to be his capstone book, A Secular Age. The purpose was to understand the strictures of modern life from Taylor’s religious perspective. To do so, Taylor defined secularism differently from what others might have done. Secularization to Taylor was not reducible to the privatization of religion and its expulsion from public spaces or to the decline of religious belief and practice. It required an underlying, more comprehensive development that gave rise to the age of his title. Taylor characterized the change as a shift in the conditions of belief so that religion and a transcendent order was just one option among several.²⁸

He wanted to know how such a change came about. But he equally sought to reject the notion that the advance of human civilization ultimately, and ineluctably, terminated in the death of God. The claim had been circulating since the 1960s, if not before, and it had recently gained prominence at the hands of a group of polemicists known as the New Atheists. Starting in 2004, with the publication of Susan Jacoby’s Freethinkers and Sam Harris’s The End of Faith, the New Atheists began to attack all religious belief as a personal and political pathology. A flurry of books soon followed: Daniel Dennett’s Breaking the Spell (2006), Sam Harris’s Letter to a Christian Nation (2006), Richard Dawkins’s The God Delusion (2006), and Christopher Hitchens’s God Is Not Great (2007). Their efforts sought to defend secular political arrangements and ideas by cataloging the diminution of rights that, they said, often occurred in nonsecular regimes.²⁹

Taylor regarded their position as impossibly tendentious. It relied on a narrative strategy that he called a subtraction story, which depicted both modernization and secularization as involving, in his words, “human beings having lost, or sloughed off, or liberated themselves from certain earlier, confining horizons, or illusions, or limitations of knowledge.”³⁰

The subtraction story was flawed because, as Taylor saw it, the development of secularism involved not merely liberation but a set of substantive commitments and an array of self-understandings and practices that could not necessarily be considered good. In the premodern era, human beings had what Taylor characterized as a “porous self” that was embedded in a wider set of social and natural relations. The porous self was awake to the changes in the cosmos in a way that made it finally receptive to God. But the advance of modernity did away with the porousness of the premodern self and created what Taylor called a “buffered self,” which tended toward personal autonomy and an ethic of self-responsibility. The buffered self created wider social shifts characteristic of the modern world that relied upon this autonomous individual. Life for people was now lived in an immanent frame that remained indifferent, even hostile, to the transcendent frame that characterized premodern existence.³¹

Taylor had previously written with admiration about the cognitive and social changes that had emerged in the modern era, but his new writing had an air of lament. The immanent frame of modern life seemed to preclude many possibilities that he thought were essential. The buffered self especially allowed, in his words, “an escape from faith.” It was to resist and to critique the flight from belief that Taylor wrote. He took issue with secularism’s boosters, who saw it as a political liberation and claimed instead that the secular age embodied a cultural state in which life is “empty, flat, devoid of higher purpose.” Its triumph is, Taylor wrote, “a victory for darkness.”³²

His work, at bottom, was a jeremiad that worked perfectly with that of Christian conservatives. A few early critics noticed the lamentation. Writing in the New Republic, the philosopher Charles Larmore pointed out, “This is not just a book written by a Christian for Christians. It is a book written by a Catholic for Catholics.” In the New York Times the intellectual historian John Patrick Diggins observed that the book was less about secularism than about solidifying the defense of, as Diggins put it, “the religious values that may save us from the temptations of our selfish desires.”³³

But the critical voices were soon overwhelmed by a crescendo of approbation. A Secular Age won the lucrative Templeton Prize for research discoveries in “Spiritual Realities.” In Taylor’s prize biography, the Templeton Foundation praised his interrogation of, in its words, “so-called objective reasoning” and his reaffirmation of the possibilities of faith.³⁴

Taylor, in his public comments, was forthright about his essentially religious purposes. In his acceptance speech, held at the Church Center for the United Nations in New York City, Taylor spoke of the “spiritual rediscovery” he sought to promote. He especially lamented the “series of forgettings” and the loss of things like God and faith that went along with the creation of the modern world.³⁵

The Templeton Foundation was hardly alone in its praise. The Social Science Research Council, with funding from the Henry Luce Foundation and the Fetzer Institute, was so taken with Taylor’s work that it set up a digital forum, The Immanent Frame, with the goal of publishing work on religion, secularism, and the public sphere. Taylor’s book was subjected to a three-month-long discussion on the platform that, in the end, included over sixty substantial responses from scholars and a variety of rejoinders from Taylor.³⁶

The Immanent Frame soon became a gathering place for critics of secularism, not just Catholic writers but also those who spoke the language of Foucauldian postmodernism and who were critical of what they considered the Western, Enlightenment stories about the emancipatory power of secular values. The most prominent standard bearer of the postmodern critics was Talal Asad, who rejected secularism as a kind of hegemonic fairy tale that touted liberation while instituting more far-reaching forms of oppression.³⁷

Others took Asad’s perspective and pressed it further, especially the cultural anthropologist Saba Mahmood. In questioning the narratives of secularism, Mahmood took issue expressly with the notion that it was a solution to the problem of religious antagonism or that it promoted toleration. She wrote at length about secular regimes in the modern Middle East that were almost universally oppressive and antidemocratic. Her assertions were astonishingly sweeping. In her view there was no real difference between a liberal secular regime like the United States and an authoritarian secular regime like Egypt. All shared a fundamental trait: they embodied a universalizing project that subjected alternative religions to domination under the rhetoric of church–state separation.³⁸

Several writers took this critical project and used it to interrogate the entire direction of American politics and law over the past seventy-five years. They pointed out that the rhetoric of church–state separation empowered the court and the government to make religious determinations about what did and did not qualify as a religion. It did not matter that the court rarely seemed inclined to make such a determination and often sought to avoid it. The justices had to define religion, and the act of definition is an act of regulation. “It is crucial to recognize,” the legal scholar Peter G. Danchin wrote, “that such entanglements are not deviations from secularism but an expression of the underlying power that makes secularism possible, a power that generates religion itself as a category and views it through a particular modality of suspicion.”³⁹

Conservative legal scholars used the work to redirect the course of law. One of the central moves of the revisionist thinkers was to echo the Catholic hierarchy that liberal secularism was essentially a form of Protestantism. The secular privatization of religion drew upon a religious ethos that accorded with the Protestant structures of belief and feeling, they said. Philip Hamburger, one of the leaders of the effort, produced a fat book seeking to show how church–state separatism historically emerged out of skepticism toward Catholic ecclesiastical authority and out of a derisive posture toward the communal ethos of an immigrant church. The resulting institutionalization of church–state separation, in Hamburger’s view, turned the First Amendment into an instrument of discrimination against people who wish to bring their faith into public life.⁴⁰

These intellectual and political agendas reinforced one another. Conservative political mobilization found intellectual heft in the Taylorian lamentation about the loss of faith, the Foucauldian interrogation of secular power, and the revisionist examination of church–state separatism. The political and intellectual streams tended to reinforce the conservative modification of American secularism and called for the reinvigoration of corporate religious bodies under the rhetoric of religious freedom.

Still, the way forward was not entirely apparent until 2009, when the Democrat Barack Obama was elected president. He entered office with Democrats holding even firmer majorities in both the House and the Senate. The cultural weakness of the Christian Right was by now so apparent that magazines like Newsweek were publishing cover stories about “the decline and fall of Christian America.” Although Barack Obama spoke as a liberal Christian and welcomed religious perspectives in public life, he did not in any way cater to the anxieties of Christian conservatives.⁴¹

Conflict began as soon as Obama took office. After some discussion the first order of business for the newly empowered Democratic majority became health-care reform. Despite months of controversy, Congress finally passed the Patient Protection and Affordable Care Act in 2010 (known more familiarly as Obamacare). The law took years to go fully into effect because numerous regulations were required to flesh out the already substantial provisions of the bill.

It was around freedom of religion that much of the controversy developed. Even before the Obama administration began to roll out its rules Christian conservatives were uneasy. They objected to the administration’s provisional directive that organizations over a certain size had to purchase health-care coverage for their employees. Those health-care plans had to meet minimal standards. Female employees had to have access to birth control as part of their plan. Conservative Christian groups wanted exemption from the contraception mandate because they regarded forms of hormonal contraception (such as birth control pills) as abortifacients.

As the Obama administration pondered its final regulations, the court, now firmly under the control of Christian conservatives, began to make the rhetoric of religious freedom more inviting. It did so by strengthening the rights of religious organizations in a case involving a teacher named Cheryl Perich. At one time she had taught at the Hosanna-Tabor Evangelical Lutheran Church and School, where she received positive evaluations from her bosses. After several years in her position she began to suffer narcolepsy and missed the first part of the academic year. When she finally gained control of her condition she wanted to return. But the school informed her that the position had been filled. It urged her to resign. When she refused, the school fired her.⁴²

In response Perich filed a charge with the Equal Employment Opportunity Commission (EEOC). After an investigation the EEOC decided that the school had violated the Americans with Disabilities Act, a 1990 law that prohibits discrimination against a person on the basis of a physical or mental impairment. The church and school declared that they had fired Perich because she consulted an outside attorney and threatened to sue. Church doctrine required that members resolve their disagreements internally. The EEOC rejected that justification and determined that the school used religious doctrine as a pretext for firing Perich for her illness.⁴³

When the school refused to budge, the EEOC brought suit against Hosanna-Tabor. In court filings the school proposed a broad ministerial exception to applicable law. Hosanna-Tabor considered Perich, in its designation, a “called teacher” who functioned as a minister in her work at the school. By accepting the position, the school maintained, she had waived her rights under the Americans with Disabilities Act.

The EEOC countered that Perich was not an actual leader or minister. She taught religious subjects for at most forty-five minutes a day. Her position was a nonreligious one, but even if it were not, the EEOC did not wish to grant that there was such a thing as a ministerial exception.⁴⁴

The court, in a unanimous decision, sided with Hosanna-Tabor. Writing for the court, Chief Justice John Roberts ruled that the First Amendment offered “special solicitude to the rights of religious organizations.” The ability to hire its ministers and to run a congregation as it wished was a foundational component of a group’s rights.⁴⁵

That was in effect the meaning of religious freedom, Roberts held. To the EEOC’s position that Perich was a secular teacher who barely taught religious subjects, Roberts responded, “The issue is not one that can be resolved by a stopwatch.” Perich disseminated the doctrine of the church and furthered its mission, regardless of how exclusively or nonexclusively she taught religious subjects. There was no clean or clear distinction between secular and nonsecular subject matter. And a congregation itself had the ability to determine who was and who was not one of its ministers. That was an essential component of the First Amendment.⁴⁶

The ruling was, accordingly, sweeping. The EEOC had earlier posited that if the court found for the school, it would allow widespread abuse by religious organizations and would undermine the rights of individuals. But Roberts denied that there would be any negative effects from his ruling. He dismissed the EEOC’s warnings as “a parade of horribles” without any basis in fact.⁴⁷

When the court announced its decision the New York Times denounced it as an aggressive expansion of religious rights. The ruling abandoned, in the paper’s words, “the longtime practice of balancing the interest in free exercise of religion against important governmental interests, like protection against workplace bias or retaliation.”⁴⁸

Nine days after the court handed down its ruling the Obama administration finalized its rules under Obamacare. The administration’s directives continued the same exemption controversy in an another register. The White House acknowledged that religious groups had certain rights and needs that ought to be honored. It exempted churches and houses of worship from the contraception mandate. But the administration also determined that religiously affiliated employers such as schools or hospitals would not be exempt. They had a public, secular function, not a private, religious one. They would have one year to bring themselves into compliance with the regulations.⁴⁹

Conservative religious groups immediately mounted a campaign. “In effect,” Archbishop Timothy M. Dolan of New York announced, “the president is saying we have a year to figure out how to violate our consciences.” The Catholic bishops soon released a statement that placed the issue in terms of religious liberty. “We address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious freedom is under attack,” the bishops claimed. Their conception of their rights meant that they possessed organizational autonomy and the ability to act upon their faith without the hindrance of law. The contraception mandate undermined their prerogatives.⁵⁰

Evangelicals lined up alongside Catholics. The NAE defended the right of religious employers who, it said, “will be forced to pay for services and procedures they believe are morally wrong.” The group of scholars behind the ECT statement, which now was nearly twenty years old, came together again to draft another statement, this time defending the ability of believers to bring their faith into the public sphere as an expression of religious freedom. The statement lamented the attempt “to define religious freedom down, reducing it to a bare ‘freedom of worship.’ ”⁵¹

The resurgence of religious freedom rhetoric marked a shift in American political culture. Gone was the appeal to public reason and the overlapping consensus that could be found in the first ECT statement. In its place was a staunchly religious form of argument that was mixed with the language of constitutional rights. The privatization of faith, the statement said, violated “the order of creation” because “human freedom, and especially religious freedom, reflects God’s design for creation and his pattern of redemption.”⁵²

A careful observer would have noticed that their concept of religious freedom was a distinctly limited one. The individual religious conscience of employees did not factor into conservative religious rhetoric. What mattered was the autonomy of religious institutions operating under the authority of their leadership. The religion scholar Elizabeth Castelli has observed that in contemporary Catholic argumentation, “religious freedom emerges as nothing more than a mode of shoring up the authority of the Magisterium of the Bishops.” The same could be said of conservative Protestant churches.⁵³

Nevertheless, the rhetoric had real power. Since the Smith decision religious freedom had become institutionalized in such a way that a gesture to religious conscience granted nearly automatic exemption from law. And the new politics of religious freedom offered much more than a selective accommodation. It demanded church sovereignty over and above that of the state. The resulting accommodations began to look, as the legal scholar Winnifred Fallers Sullivan has put it, “a lot like what might once have been considered ‘established’ or ‘sectarian’ religion in an earlier American parlance.”⁵⁴

The Obama administration sought to resolve these dilemmas. After three weeks of controversy it issued a rule to mollify religious critics. It wanted to honor religious organizations’ conscience, but it also could not just waive the contraception requirements. Given the extensive public–private partnership in health care, to eliminate the mandate would create massive holes of coverage for the American public. In addition, many people who worked in religious organizations did not share their employers’ religious beliefs—hospitals were a prime example. Waiving the contraception requirement would privilege the employers’ rights of conscience over the employees’ equally valid rights of conscience. After much consideration, the administration announced what it seemed to consider a brilliant fix. Religious organizations would not have to pay for conception coverage, but they would still have to offer it. The costs would be borne by insurers.

Some groups were appeased but many others were not. As the faith-based effort of George W. Bush had shown, money was fungible. Somebody would pay for conception coverage, and those costs would be passed along to religious bodies whether they liked it or not. “We are still afraid that we are being called upon to subsidize something that we find morally illicit,” Archbishop Dolan said. “There is still no attention to what you might call the deeper philosophical issues, namely, ‘What right does a federal bureau have to define the who, what, where, and how of religious practice?’ ” This was the question that had been percolating ever since the Bob Jones case.⁵⁵

Several groups, including for-profit corporations, filed suit in federal court, making similar arguments. They based their appeal on the RFRA. As the cases began to make their way through the system, conservative judges responded positively. By the time the appeals got to the Supreme Court many liberals started sounding the alarm. Representative Jerrold Nadler of New York, who cowrote the RFRA, complained to the progressive cable channel MSNBC that Christian conservatives were ignoring the purpose of the law. “It was never intended as a sword as opposed to a shield,” he said. A few days later he issued a statement elaborating his point: “When we passed RFRA, we sought to restore—not expand—protection for religion.”⁵⁶

Other critics began to point out that RFRA became law as the result of a large coalition of groups who supported religious freedom. It now seemed to aid only Christian conservatives, which undermined support for the idea among the general populace. “If anyone had ever come up with a scenario like what’s been proposed,” said Barry Lynn of Americans United, “that coalition would have exploded like someone hitting a watermelon with a shotgun. There would have never been a Religious Freedom Restoration Act.”⁵⁷

Liberal fears were soon confirmed when the court, with a five-person majority, affirmed the conservative demands for religious autonomy. Writing for the court in Burwell v. Hobby Lobby Stores Inc. (2014), Justice Samuel Alito ruled that the RFRA required a nearly absolute right of exemption from otherwise applicable law. To sustain his position, he had to elaborate a couple of claims. First, he ruled that closely held corporations—that is, those run by a small group of individuals, usually a family—had religious rights. Second, he held that RFRA sought to create a new trajectory in the law of religious freedom that granted rights to religious organizations of all types.⁵⁸

The result was a monumental decision. Rather than restoring religious-freedom law to the balancing tests the court had used before the Smith decision, Alito freed conservatives to rule as they wished in the future. “The Roberts Court is now unconstrained by precedent,” a group of law professors writing in Slate observed after the ruling.⁵⁹

Liberals on the court were aghast. In her dissent Justice Ruth Bader Ginsburg decried the “startling breadth” of the majority opinion. It promoted, she said, a vision of society in which corporations could control large numbers of people. Unlike nonprofit religious organizations that, when small enough, drew upon a shared theological or moral perspective, for-profit corporations employed people from all walks of life. They were bound together only by the goal of making money. And closely held corporations were also not always Mom-and-Pop operations with few employees. Hobby Lobby, a closely held corporation run by the religious family who brought the case, employed thirteen thousand people. Mars, Inc., another closely held corporation, grossed $33 billion a year and had seventy-two thousand employees. Cargill, Inc. grossed $136 billion a year and had one hundred forty thousand employees. All were closely held corporations who could be exempt from the law.⁶⁰

The majority ignored all such considerations, Ginsburg wrote. In doing so, it allowed a small group of individuals who ran these huge companies to make medical and moral choices for others, to impose their religious beliefs upon a much broader group of people whose religious views were rendered irrelevant. It also opened up a myriad of ways, Ginsburg explained, by which corporations could “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”⁶¹

To Barry Lynn, the effort revealed a wider strategy of Christian conservatives that betrayed a bad faith. Rather than merely carving out an autonomous space, in Lynn’s interpretation, they sought to use RFRA as a Trojan horse to continue their cultural and political power. The next steps were already being talked about, he alleged. Characterizing conservative Christian strategy and discussion, Lynn said, “Let’s go after equal pay, let’s go after the civil rights acts, let’s just go after everything that every religious right group doesn’t like and doesn’t want to obey.”⁶²

But there was an underlying component that Lynn did not quite see. Christian conservatives had learned the language of the New Left. If the personal was political, then the privatization of faith would be its trivialization and impotence. So in turning to the language of religious freedom, they resuscitated their political project under the banner of constitutionally protected language. They no longer spoke using the consistent vocabulary of Christian triumphalism, though that might still have motivated their actions. They learned to ask, as Rorty had suggested, “Does our use of these words get in the way of our use of those other words?” When it did, they dropped the language of Christian triumphalism and turned to other claims, a tacit accommodation to the rules of the American secular order that still allowed for the advancement of their interests.⁶³

They did not always win, though, and defeat only reinforced their sense of beleaguerment. Their biggest anxieties were often related to sex and especially gay rights. By 2014, when the court handed down its Hobby Lobby decision, the gay rights movement had made astonishing gains. A majority of Americans supported equal treatment for gays and lesbians. Cases were making their way toward the Supreme Court with the aim of legalizing same-sex marriage rights. Conservatives opposed gay rights, but when the courts required them to submit nonreligious justifications for their opposition, they were unable to come up with anything persuasive. In response, they began to move forward religious freedom bills in several states. These bills allowed people with an objection to homosexuality to deny food service, employment, adoption services, hotel accommodations, and more to gay people. “In this new up-is-down world, anti-gay religious folks are ‘practicing their faith’ when they’re baking cakes or renting out hotel rooms to travelers,” Evan Hurst of Truth Wins Out complained in Mother Jones.⁶⁴

Christian conservatives redoubled their efforts in 2015 when the Supreme Court, in another 5–4 decision, legalized same-sex marriage. The decision seemed to be the logical extension of the legal and political movement that had swept across the country. Nearly all of the 2016 Republican presidential hopefuls denounced the decision in bitter terms. Many made the trip to Liberty University, where they lambasted the administration and decried what they saw as a war on faith. Ramesh Ponnuru, an editor at National Review and a conservative Catholic, told the Wall Street Journal that “there’s the sense on the part of social conservatives that we need protections of our liberty as dissenters.”⁶⁵

Then-candidate Donald Trump happily promised that if he were elected they need not be dissenters anymore. He had long telegraphed his appeal to conservative Christian voters by promising that his enemies would be their enemies. Those enemies included more than gay activists. At a December rally in 2015 he said that the Obama administration had been soft on terrorism because, as he had long implied, Obama was a closet Muslim. As president, he would do more. “Donald J. Trump,” he announced, referring to himself in the third person, “is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”⁶⁶

Critics pointed out that a ban on Muslims would likely violate the establishment clause of the Constitution and could be said to infringe on religious freedom. But Trump’s strategy was clear. He sought to appeal to the sense of cultural estrangement that Christian conservatives professed and to offer them a route back to privilege, if not dominance. So even as he decried the dangers of Islamic terrorism, and even as he warned darkly of the establishment of Sharia law in the United States, he looked for ways to strengthen the place of Christian institutions in American life. In January 2016, at a small Christian college in Sioux Center, Iowa, Trump was explicit. His speech became infamous for his declaration that, in his words, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters, OK?” But the purpose of his visit was to curry that kind of devotion in his Christian disciples. To do so, he made them a promise.

He said to the crowd, “Christianity is under tremendous siege, whether we want to talk about it or we don’t want to talk about it.” In his view Christians made up the overwhelming majority of the country—which was erroneous, given the demographic shifts that had taken place in the past forty years—but Christians had been sidelined in spite of their numerical superiority. That would all change if he were elected president.

“Christianity will have power,” he assured them. “If I’m there, you’re going to have plenty of power, you don’t need anybody else. You’re going to have somebody representing you very, very well. Remember that.”⁶⁷

The next month at the National Prayer Breakfast he added a concrete proposal. He promised to “get rid of and totally destroy” the Johnson Amendment, which prohibited tax-exempt organizations from participating in or trying to influence political campaigns. The implication seemed to be that the limitation on religious organizations had resulted in a lopsided political contest that he was going to right.⁶⁸

Once he secured the Republican nomination he added to the ticket Mike Pence, an evangelical governor of Indiana best known for signing the state’s RFRA after the legalization of gay marriage.

The entire campaign might have smacked of political opportunism, given Trump’s lukewarm religious sensibilities, but Christian conservatives warmed to him. Their support helped him secure the election. After assuming the presidency Trump made good on his promises. One week after being sworn in he issued an executive order banning national entry from several Muslim-dominant nations. This was the promised Muslim ban, now a reality. A raft of lawsuits soon began making their way through federal courts, and judges began suspending or striking down portions of the order. Because it had been issued so quickly and sloppily it contained numerous problems. The administration was forced to retract the first order and issue another one. When similar challenges were brought against that order and judges again began striking it down, the administration had to retract it to issue a third order.⁶⁹

Trump also quickly issued a directive to the IRS to use “maximum enforcement discretion” in deciding when the Johnson Amendment applied to churches and religious nonprofits. His order did not get rid of the amendment, which could be done only by a congressional act, but it did seek to cripple it. At the signing ceremony, held on the National Day of Prayer, Trump said he was simply restoring religion to its proper place in public life. “We will not allow people of faith to be targeted, bullied or silenced anymore,” he said.⁷⁰

The Trump administration went out of its way to make sure that a diverse group of religious officials was at the signing. Trump was flanked by orthodox Jews, a Sikh, two nuns who were currently suing the federal government for exemption from the Obamacare contraception mandate, and a priest, alongside evangelical leaders. The optics implied a conservative ecumenical movement united around the principle of religious freedom. But the actual effect of the order was first and foremost to strengthen Christian priorities in public life, as Tony Perkins of the Family Research Council acknowledged in his statement praising Trump’s action. “The open season on Christians and other people of faith is coming to a close in America,” he said, “and we look forward to assisting the Trump administration in fully restoring America’s First Freedom.”⁷¹

The White House put out press releases touting its work in similar terms. The administration said that in addition to allowing greater political speech for religious groups, Trump had modified Obama’s health-care law to allow even more exemptions when someone invoked conscience. He supported the religious liberty bills that spared Christians from offering services to gays and lesbians. And as part of Trump’s hyped religious freedom initiatives, the administration sought to preserve “the sanctity of life” by stopping the attack on prolife policies.⁷²

The courts had to sort out what was legal and what was not. A commitment to religious freedom rather than to Christian freedom might have imperiled the administration’s Muslim ban. But when the question came before the Supreme Court the conservative majority went out of its way to disregard the religious animosity that Trump had displayed. Writing for the court, Chief Justice John Roberts said, “The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.”⁷³

Others on the court were outraged. Associate Justice Sonia Sotomayor, in her dissent, cited a catalogue of oral and written statements showing Donald Trump’s fervent desire to keep Muslims out of the country. “Islam hates us,” he had said. “We’re having problems with Muslims.” He called for surveillance of mosques. The list of Trump’s statements filled pages of Sotomayor’s opinion. “Based on the evidence of the record,” Sotomayor wrote, “a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus.” That should have been enough to strike down the executive order. But, she continued, “the majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”⁷⁴

In a way the court’s ruling made certain things clear. In the hands of Christian conservatives both in the Trump administration and on the court, religious freedom tended to mean conservative Christian freedom and privilege. But if there was any confusion, it evaporated in the fall of 2019 when Trump’s attorney general, Bill Barr, gave a speech ostensibly on the topic of religious liberty at the University of Notre Dame Law School. His topic in reality was an extended criticism of secularism that seemed to echo, in a distinctly Catholic idiom, what the academic critics had been saying about the failures of secular governance.

Barr told a story about the United States that followed the usual forms of lamentation. The Founding Fathers, he said, had created the nation to uphold Christian values. They recognized the importance of religious ideals to American society because they themselves were Christians and had the view of human nature drawn from, in Barr’s words, “the classical Christian tradition.” What that meant was that the Founders knew that man was capable of great evil and that self-government was possible only through the disciplining process of the Judeo-Christian tradition and the moral culture it fostered. Religious freedom was essential to the creation of that moral culture. But as a result of the sixties, Barr announced, American moral sensibility and its religious foundation had gone into decline.⁷⁵

“I think we all recognize that over the past 50 years religion has been under increasing attack,” Barr told his audience. “On the one hand, we have seen the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square. On the other hand, we see the growing ascendancy of secularism and the doctrine of moral relativism.”⁷⁶

To Barr, the tendency was clear and unidirectional. Secularism was always positive and substantive, the result of sixties radicals who sought to displace the Judeo-Christian faith. Those who opposed the place of Christianity in American public life were not seeking to make room for diversity. They were setting up an alternative religion. As a result, in Barr’s interpretation one could not be a Christian and a secularist at the same time because secularism was always hostile to religion and sought to contain, cripple, and eliminate, if possible, religious influence in American society.

“Secularists, and their allies among the ‘progressives,’ have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” Barr said. They “affirmatively promote secular orthodoxy” and “drown out and silence opposing voices.” The result for the nation was a calamity of truly biblical proportions. He pointed to the rise of illegitimate births, the increase of violence in society (violent crime had actually declined dramatically since the 1990s), and the general moral decay of American life as the bitter fruits of secularism. The only alternative to continued national degeneration was the use of law to pursue what Barr characterized as a “moral renewal.”⁷⁷

To that end he promised a vigilance in the Department of Justice against state and local governments who sought to limit Judeo-Christian religious freedom. His department would work to allow public monies to be used for private, religious schools. He also promised support for a variety of exemptions: for Christian parents, from sex education in public schools; for private schools, from nondiscrimination laws in employment; and for a variety of private, religious institutions, from many otherwise applicable laws even when they received public money.⁷⁸

“As Catholics, we are committed to the Judeo-Christian values that have made this country great,” he said in conclusion. “I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.”⁷⁹

For a sitting attorney general the speech was remarkable in its forthrightness. Critics complained that the rhetoric was dangerous. Liberal Catholics noted that Barr was drawing on an ultraconservative and doctrinaire form of Catholicism in his work at the Justice Department. C. Colt Anderson, a theologian and professor of religion at Fordham, told the Guardian that Barr’s extreme conservatism threatened to use law to penalize all those who disagreed with his view of Catholic doctrine. In that way, Barr looked a lot like other ultraconservative Catholics who were using religious ideas to crack down on free speech and to purge judges in increasingly authoritarian nations like Poland.⁸⁰

Other critics used his statement to point out the disingenuousness of the Christian Right, whether Catholic or Protestant. In the New York Times, the journalist Katherine Stewart and the past president of the American Constitution Society Caroline Fredrickson wrote, “This form of ‘religious liberty’ seeks to foment the sense of persecution and paranoia of a collection of conservative religious groups that see themselves as on the cusp of losing their rightful position of dominance over American culture. It always singles out groups that can be blamed for society’s ills, and that may be subject to state-sanctioned discrimination and belittlement—L.G.B.T. Americans, secularists and Muslims are the favored targets, but others are available. The purpose of this ‘religious liberty’ rhetoric is not just to secure a place of privilege, but also to justify public funding for the right kind of religion.”⁸¹

Yet none of the criticism slowed the momentum. As the Trump administration, with the aid of Senate Majority Leader Mitch McConnell, continued to fill the federal court system with conservative judges, cases about religious freedom continued to flow up to the Supreme Court. Christian conservatives on the court happily accepted them. In January 2020 the court agreed to hear arguments against the Trump administration’s decision to allow more religious freedom exemptions from the Obamacare contraception mandate. Brigitte Amiri, a lawyer with the ACLU’s Reproductive Freedom Project, told the New York Times, “Allowing employers and universities to use their religious beliefs to block employees’ and students’ birth-control coverage isn’t religious liberty—it’s discrimination.”⁸²

That same month the court accepted a case in which the Montana Supreme Court struck down a voucher program that sent public money to private religious schools. The Montana Constitution had an amendment that prohibited public support of sectarian education, which led to the lower court’s decision. But conservatives on the U.S. Supreme Court seemed ready to strike down the provision of the Montana Constitution and of any other constitution that had similar language. At the same time, Secretary of Education Betsy DeVos proposed a $5 billion federal tax credit program to encourage similar voucher systems in other states. The goal was to allow private religious groups access to public money while simultaneously exempting them from otherwise relevant laws.⁸³

All looked to be flowing in the direction that conservatives wished. But before these cases could come to fruition, the court faced another gay rights case over whether LGBT people were protected from workplace discrimination by the 1964 Civil Rights Act. In a surprise 6–3 opinion written by the Trump appointee Neil Gorsuch, who felt bound by the text of the statute in spite of his personal opinion opposing gay rights, the court held that gay and transgender people were protected by the law. When asked about the ruling, Donald Trump said to reporters, “I’ve read the decision, and some people were surprised, but they’ve ruled and we live with their decision.”⁸⁴

Others were not so reticent nor resigned. Associate Justice Samuel Alito, writing in dissent, warned that the majority’s decision “will threaten freedom of religion, freedom of speech, and personal privacy and safety.” Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, amplified Alito’s statement. He decried the decision as an erosion of the freedom and autonomy of religious organizations. The ruling, he said, “will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality.”⁸⁵

Conservatives were soon reassured when the 5–4 court handed down a decision in the Montana case, striking down the state’s constitutional provision that forbade public support for private education. Writing for the majority, Chief Justice John Roberts used the ruling to rehabilitate public support for private religious schools. “The prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them,” he wrote. “The no-aid provision [of the Montana Constitution] penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.” The decision marked the triumph of the child-benefit theory first put forward by the Catholic church in the 1940s.⁸⁶

Associate Justice Samuel Alito went further in his concurring opinion. He noted that the desire to keep public money out of sectarian schools had originated in the Protestant suspicion of Catholicism. That anti-Catholic animus had been, Alito alleged, reproduced in the jurisprudence of the court that proclaimed a wall of separation between church and state. The anti-Catholic impulse of church–state separatism made it into a form of antireligious discrimination that the court ought to strike down in all its forms. Large portions of the opinion drew on the recent academic literature critical of secularism, especially the work of Philip Hamburger, and the entire thrust of Alito’s reasoning showed how far he was willing to revitalize religious bodies with public money.⁸⁷

Yet the majority’s reasoning had tensions that the opinion did not resolve. It alleged discrimination that it never showed. The opposite was the case: the court’s reasoning displayed both a special favoring and a discrimination against the nonreligious. In allowing for the public subsidization of private religious education, as the columnist Linda Greenhouse pointed out, “parents of religious-school students ended up with a privilege that no other parents in the state enjoyed, all in the name of preventing discrimination against religion.”⁸⁸

One week later, on July 8, the court handed down its decision on the Obamacare contraception mandate. In a 7–2 opinion the court upheld the Trump administration’s decision to free employers who had moral and religious objections to birth control from the obligation to provide coverage for their employees. In essence, religious conservatives declared that indirect support for birth control paid for by insurers, if it ran against an organization’s avowed religious principles, abridged religious freedom. But direct state support of private religious institutions raised no constitutional issues.⁸⁹

That same day the court handed down another decision, also 7–2, that affirmed a ministerial exception for religious schools from otherwise applicable discrimination laws. The New York Times legal reporter Adam Liptak called the two decisions “part of a broad examination of the relationship between church and state over the 15-year tenure of Chief Justice John G. Roberts Jr. in which the court’s conservative majority has almost always sided with religious groups.”⁹⁰

Others had more sympathetic analyses. The conservative legal scholar Michael McConnell, who had long championed religious freedom as an essential constitutional value, asserted in an op-ed that the court was not protecting religion per se. It was protecting pluralism. As McConnell put it, the combined decisions of the final weeks of the 2020 term showed a solicitousness to “the right of individuals and institutions to be different, to teach different doctrines, to dissent from dominant cultural norms and to practice what they preach.” This was the real rationale behind the court’s decision to protect gay and transgender rights as well as the decisions protecting religious institutions. “Very roughly speaking,” McConnell explained, “the court seems to side with the party defending the right to live in accordance with one’s identity: whether that is the right of a gay person to be free from discrimination in the workplace, or the right of a religious order to decline insurance coverage for contraceptive drugs that violate its teachings, or the right of religious schools to be free of government interference with their choice of people to teach religious doctrine or practice to their children.”⁹¹

McConnell failed to point out these identities conflicted, as both Christian conservatives and gay activists realized. The court protected gay and transgender people from discrimination, yet it also allowed religious organizations, even for-profit corporations, wide exceptions to law, which potentially allowed them to discriminate as they wished. In effect, as Linda Greenhouse put it, the Roberts court has been “insisting on organized religion’s entitlement to public benefits as a matter of equal treatment while at the same time according religion special treatment in the form of relief from the regulations that everyone else must live by. Benefits without burdens, equal treatment morphing into special treatment.”⁹²

Taken together these cases reveal the partial unraveling of American secularism under the banner of religious freedom. In the 1930s the concept was a mechanism to eliminate the de facto Christian establishment by allowing for alternative religious expressions frowned upon by the Christian majority. In the 1960s religious liberty was a right of private faith that required public equality, nondiscrimination, and the cultural disestablishment of American Christianity. In the early twenty-first century religious freedom has become a rhetoric that justifies the projection of private religious sensibilities into the public realm and the appropriation of public money to private religious ends. The rules of public reason have slowly broken down, and all that remains is an agonistic fight in a bitterly divided political context.